SCD v Queensland Police Service Weapons Licensing

[2020] QCAT 433

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

SCD v Queensland Police Service – Weapons Licensing [2020] QCAT 433

PARTIES:

SCD
(applicant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO:

GAR221-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

9 November 2020

HEARING DATE:

6 April 2020

HEARD AT:

Townsville

DECISION OF:

Member Pennell

ORDERS:

1.     The decision of the Queensland Police Service  Weapons Licensing dated 30 April 2019 to revoke the applicant’s firearm licence pursuant to the Weapons Act 1990 (Qld) is confirmed.

2.     The publication of the contents of any document or thing filed in or produced to the Tribunal and any evidence given to the Tribunal by any witness is prohibited to the extent that it could lead to the identity of the applicant or any member of the applicant’s family or any non-party to the proceedings.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND RELATED MATTERS – LICENCES AND REGISTRATION – LICENCE AND PERMIT – REVOCATION – ADMINISTRATIVE LAW – where the applicant was issued with a firearm licence for recreational purposes – the applicant owned and possessed firearms – the applicant threatened suicide by using his firearm – the threat of self-harm arose out of domestic violence incident – the applicant was admitted as an involuntary patient into a mental health unit for treatment – the applicant’s firearm licence was revoked – whether the applicant is a fit and proper person – the public interest test

EVIDENCE – MISCELLANEOUS MATTERS – NON PUBLICATION OF EVIDENCE – ORDERS –         NON-PUBLICATION OF IDENTITY – de-identifying of the proceedings undertaken by the Tribunal on its own initiative – the applicant was involved in domestic violence incident with members of his family –  the applicant suffers from a psychological condition – de-identification of applicant to avoid endangering applicant’s mental health – publication of the identity of the applicant, witnesses and non-parties would be contrary to public interest 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 19, s 20(1), s 20(2), s 24(1), s 28(1), s 28(2), s 28(3)(a), s 28(3)(b), s 28(3)(c), s 28(3)(d)

Weapons Act 1990 (Qld), s 3(1), s 3(2), s 10(2)(e), s 10B(1)(a), s 10B(1)(d), s 10B(2)(ii), s 29(1)(d), s 142(1)(e), Schedule 2

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Director of Public Prosecutions v Smith [1991] 1 VR 63
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Kioa v West (1985) 159 CLR 550

O’Sullivan v Farrer & Anor (1989) 168 CLR 210
Sinclair v Mining Warden at Maryborough(1975) 132 CLR 473

The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott (1933) 50 CLR 228

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

APPEARANCES & REPRESENTATION:

Applicant:

B Garland, Solicitor, Strategic Lawyers

Respondent:

D Ayscough, Sergeant of Police

REASONS FOR DECISION

Background

1. On 4 December 2015, the applicant (‘SCD’) made an application to be issued with a firearm licence pursuant to the Weapons Act 1990 (Qld) (‘Weapons Act’).  He previously held a licence in Western Australia prior to relocating to Queensland.  He required the firearm licence for the control of vermin, including rabbits, pigs and foxes on a rural property.  At that time, he was not adversely known to the Queensland Police Service and was assessed as being a fit and proper person to be issued with a firearm licence.[1]  That licence was subsequently issued for recreational purposes and it authorised him to possess categories A and B firearms.  The licence was not issued to him for occupational purposes and nor has he ever applied for an occupational licence.  As time progressed, he kept and maintained two firearms in accordance with his obligations under the Weapons Act.

   [1]The firearm licence was issued on 19 January 2016.

2. On 27 January 2019, police were called to attend SCD’s home.  Police had received information that SCD was in a depressed state and he became involved in a domestic argument with his daughter, which escalated when she attempted to leave the house.  He punched her in the head with a closed fist.  He then attempted to access his firearms and threatened to commit suicide by using one of his firearms, telling members of his family “I want to end it”.  Fortunately, his wife and daughter prevented from him accessing the firearms in the gun safe.      

3. SCD told police that he had been experiencing difficulties in finding steady work and he had been feeling down and depressed for a few months prior to this incident.  Being away from his family and friends who lived interstate partly contributed to his depression.  He went on to say that he was not the type of person to seek psychological intervention in stressful situations and in the period leading up to that event, there had been a number of occasions when he contemplated suicide.  He added that the events of that evening had pushed him over the edge.

4. Because of SCD’s intention to self-harm, the police considered there was a significant risk of further self-harm and he was taken as an involuntary patient to the acute mental health unit.  The police took possession of his firearms.

5. What followed with respect to SCD’s firearm licence was an assessment by the respondent which led to a conclusion that SCD was no longer a fit and proper person to hold a firearm licence, and it was not in the public interest for him to hold such a licence.  His firearm licence was revoked.[2]  He now seeks a review of that decision.

   [2]Revocation issued on 30 April 2019.

   Conduct of proceedings and the legislative pathway

6. Subject to the provisions of the Weapons Act, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’), the conduct of Tribunal proceedings is at the discretion of the Tribunal.  However, there is an obligation that fair procedures are to be applied and adapted to the circumstances of each particular case.[3]  In exercising that discretion, the Tribunal may inform itself in any way it considers appropriate,[4] but must act fairly and according to the substantial merits of the case.[5]  Further to that, the Tribunal is obligated to observe the rules of natural justice.[6]

   [3]Kioa v West (1985) 159 CLR 550, 585.

   [4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c).

   [5]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).

   [6]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).

1. Although not bound by the rules of evidence,[7] this does not ordinarily mean the Tribunal should ignore all rules of evidence.  In The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott (1933) 50 CLR 228, the High Court held that rules of evidence –

   … represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and illicit truth.  No tribunal can, without grave danger of injustice, set them to one side and resort to methods of inquiry which necessarily disadvantage the opposing party.  In other words, although rules of evidence as such do not bind, every attempt must be made to administer substantial justice.[8]

   [7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).

   [8]The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott (1933) 50 CLR 228, 256.

2. Returning to the Weapons Act, the Act regulates the entitlement for the use and ownership of firearms.[9]  The object of the legislation[10] is to prevent the misuse of weapons.[11]  The imposition of strict controls on the possession of firearms, including the requirement for safe and secure storage can only improve firearm safety.[12]  Afterall, an important factor underlying the legislation is the principle that the safety of the public and individuals overrides the rights of individuals to possess firearms. 

   [9]Weapons Act 1990 (Qld), Schedule 2 – Dictionary provides that a firearm includes a gun or other thing ordinarily described as a firearm.

   [10]Weapons Act 1990 (Qld), s 3(2).

   [11]Weapons Act 1990, Schedule 2 – Dictionary provides that a weapon includes a firearm.

   [12]Weapons Act 1990 (Qld), s 3(1).

3. A discretion is afforded to the respondent when issuing a firearm licence.  The Weapons Act provides that a licence may only be issued to a person if that individual meets the established legislative criteria, including that they are a fit and proper person to hold a firearm licence.[13] Whether a person is fit and proper requires consideration to be given to, amongst other things, matters including the individual’s mental and physical fitness,[14] and whether the authorising of that person to possess a weapon is contrary to the interests of the public.[15]

   [13]Weapons Act 1990 (Qld), s 10(2)(e).

   [14]Weapons Act 1990 (Qld), s 10B(1)(a).

   [15]Weapons Act 1990 (Qld), s 10B(1)(d).

4. Because the respondent revoked SCD’s licence, what is relevant is the express legislative provision which allows the respondent to exercise that discretion.  It may undertake that task if it was satisfied of a number of things, including an assessment that SCD is no longer a fit and proper person to hold a firearm licence.[16]  In recognising the exercise of that discretion, and to validate its application, there must be evidence to support its imposition.

   [16]Weapons Act 1990 (Qld), s 29(1)(d).

5. Because the respondent has decided to revoke SCD’s firearm licence, the Weapons Act allows SCD to make an application to the Tribunal for a review of that decision.[17]  The QCATAct provides that when reviewing the respondent’s decision, the Tribunal effectively ‘stands in the shoes’[18] of the original decision maker.[19]

   [17]Weapons Act 1990 (Qld), s 142(1)(e); Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18.

   [18]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19.

   [19]The respondent.

6. Any review undertaken must be a fresh hearing on the merits of the application[20] and the Tribunal’s purpose is to produce the correct and preferable decision.[21]  Any decision reached must be based on the material before the Tribunal at the time of the review hearing.[22]

   [20]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

   [21]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

   [22]Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.

7. In arriving at a conclusion of what is the correct and preferable decision, there is a discretionary election afforded to the Tribunal to do one of three things.  The first election is to confirm or amend the respondent’s original decision.  The second election is to set aside the respondent’s original decision and substitute that decision with its own decision; and the third election is to set aside the respondent’s decision and return the matter for consideration to the original decision maker with directions the Tribunal considers appropriate.[23]

   [23]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).

   The hearing

8. When the hearing commenced, SCD did not give evidence on his own behalf and nor did he call evidence from any witness in support of his application.  On a number of earlier occasions, directions were provided to him for the filing of material he replied upon, and on several occasions, he failed to meet the filing deadlines.  A precis of the Tribunal’s directions is as follows.

13-Jun-19	SCD filed his application to review the respondent’s decision.
02-Jul-19	Tribunal’s directions.  SCD was to file and serve all material he relied upon by 4 September 2019.
18-Sep-19	Compulsory Conference held.  SCD had not filed the material he relied upon pursuant to the Tribunal’s directions dated 2 July 2019.  Leave was granted for him to be legally represented and the time for him to comply with Tribunal’s earlier directions to file material was extended to 18 October 2019.
18-Oct-19	SCD failed to meet this deadline to file the material he relied upon set by the Tribunal’s directions of 18 September 2019.
24-Oct-19	On-Papers Hearing conducted.  Further direction given.  The time for SCD to comply with Tribunal’s earlier directions to file material was extended to 15 November 2019.
15-Nov-19	SCD again failed to meet the deadline set by the Tribunal for him to file his material but he made an application to extend the time for compliance.
21-Nov-19	On-Papers Hearing conducted.  Further directions given.  The time for SCD to comply with Tribunal’s earlier directions of to file material was extended to 4:00pm on 21 November 2019.
25-Nov-19	Directions Hearing.  Directions given to the SCD that he must ensure that Doctor SH was made available for cross-examination at the hearing, and the doctor may give his evidence by telephone.

Supporting evidence

1. Specific directions were made by the Tribunal with regard to the management of the expert evidence that was to be provided at the hearing.  SCD was directed that his treating psychiatrist, Doctor SH, was to be made available for cross-examination.

   Doctor RE

2. Doctor RE was not called to give evidence at the hearing.  She wrote to the respondent on behalf of SCD.[24]  In that letter, she indicated SCD had been a patient of her medical practice for the previous eight months, although the doctor did not explain in what capacity he was a patient.  That is, she did not explain whether there were any other previous occasions he sought treatment for matters relating to stress, suicidal ideation or other psychological issues.  She wrote –

   I note that [SCD] has recently had his firearms removed due to an incident where he threatened to self-harm.  He was seen at that time by the psychiatric team at [a Hospital] and cleared for discharge.  Since then he has had a mental health care plan done by myself and has been referred for psychology sessions. 

   She went on to write –

   Reflecting on the incident he was adamant he said those things out of acute stressful situation.  He has no desire to hurt himself or others and his wife feels safe with him having firearms back at home.  He does suffer from some mild depression and needs to work on controlling his temper.  I note he requires a firearm as his job as a CIT security officer.  Therefore it is my recommendation that his firearms be returned at this stage.

   [24]Letter dated 8 February 2019 and enclosed within the respondent’s material at page 8. 

3. I note that Doctor RE said that SCD required his firearm licence for his employment, yet that is contrary to the conditions of the licence issued to him.  It was issued for recreational purposes only.[25]

   [25]SCD’s application for a firearm licence enclosed within the respondent’s material at pages 14 and 16,

4. Doctor RE indicated that SCD had a mental health care plan, however this was not presented by him to the Tribunal and there is no evidence to indicate why there was a need for the plan to be place; or what issues the plan addressed; or what outcomes the plan sought to achieve.  Doctor RE’s comments also suggested that SCD had been referred for psychology sessions, without any reference to whom he was referred to and why there was a need for that referral. 

5. An observation of the facts which led to the intervention of the police after SCD assaulted his daughter is that for whatever reason it may have been, his behaviour reflected a loss of self-control and a loss of temper.  Doctor RE commented that SCD needed to work on controlling his temper. 

6. Notwithstanding that comment, there does not appear to be any evidence produced which shows that any measures were taken to address this important issue.  In my view, SCD’s lack of self-control brought about by his failure to control his emotions is an important factor when giving consideration to the fit and proper person principle.

   Doctor SH

7. Doctor SH provided a medical certificate.[26] In that certificate he wrote –

   This is to certify that [SCD] in my opinion is currently in a stable mental state with ongoing medication and psychological intervention.  He does not have any suicidal or homicidal ideation. 

   He went on to write –

   He has reasonable insight and intact judgment, his decision-making capacity is not influenced adversely and he understands the responsibility of holding the firearm.  He is in a stable mental state to hold a firearm licence.

   [26]Dated 30 October 2019.

8. SCD urged the Tribunal to accept Doctor SH’s assessment of him.  In support of Doctor SH’s qualifications to reach a conclusion about SCD’s capacity to possess a firearm licence, a computer printout from the webpage of the Australian Health Practitioners Regulation Agency – Register of Practitioners was provided.[27] 

   [27]Dated 11 November 2019.

9. That document confirmed that Doctor SH was a registered medical practitioner and in 1990 he received a Bachelor of Medicine / Bachelor of Surgery from an overseas university.  He has been registered as a medical practitioner in Australia since 2007.  In 2010 he attained an Australian Medical Council accreditation and in 2015, he qualified and became a part of the Fellowship of the Royal Australian and New Zealand College of Psychiatrists.

10. A further observation of the computer printout produced by SCD revealed that there were conditions imposed upon Doctor SH’s authority to practice.  Those conditions relate to disciplinary actions taken by the Queensland Office of the Health Ombudsman to impose a number of conditions upon the doctor’s registration.[28] 

    [28]Those conditions were imposed on 14 May 2019.

11. Of those conditions imposed, it is notable that Doctor SH must not have contact with female patients and he must take all reasonable steps to ensure appointments are not scheduled for female patients.  Although there is no information provided as to why those conditions were imposed, the inference is reasonably serious given that a further requirement of Doctor SH is that he must immediately advise the Office of the Health Ombudsman if at any time he was charged with an indictable offence. 

12. Doctor SH was not made available for cross examination as directed by the Tribunal.  Apart from some very brief comments in a medical certificate, very little is known of why SCD consulted with this doctor.  Nor was any information provided as to how many (if any) consultations or counselling sessions took place, and over what time they took place, or why there was a need for any such consultations or counselling (if any), or what outcomes (if any) were achieved. 

13. Added to those concerns, I consider that there is a distinct lack of probative evidence to support any hypothesis that Doctor SH reached about SCD.  For example, Doctor SH gave an opinion that SCD was currently in a stable mental state with ongoing medication and psychological intervention.  No further explanation was given about that particular comment; save for the added words that he does not have any suicidal or homicidal ideation.  Doctor SH does not explain what medication SCD was taking, why that was prescribed to him, or what were the outcomes sought to be achieved by the administration of that medication regime. 

14. Doctor SH said SCD had reasonable insight and intact judgement, and his mental state was stable enough to hold a firearm licence.  No clarification was made as to how he arrived at that conclusion.

15. Curiously, there is a distinct absence of an evaluation of any ability of SCD to identify the triggers which led to his concerning behaviour, and whether he could sufficiently address those triggers if they arose again, or whether he was able to sufficiently address the existence of those triggers and the following impact, if any, upon him.

    KA

1. KA is a Social Worker and has qualifications of a Bachelor of Social Work, Postgraduate Forensic Psychology and Masters in Narrative Therapy and Community Work.  She operates her own counselling service.    

2. She wrote a letter in support of SCD’s application after he had attended her counselling service from February 2019 to May 2019.  He had been referred to her upon his discharge from the acute mental health unit. 

3. In her letter, KA wrote –

   At the time of the incident [SCD] informed that he was feeling depressed and having thoughts of harming himself. Since this time [SCD] has been attending counselling with [KA’s Counselling Service] on a fortnightly basis. There has been an assessment completed with [SCD] and he has not met any criteria for major mental health illness.  [SCD] does become frustrated and angry; he had some maladaptive strategies that he was implementing to manage these.

   Through appointments [SCD] has learned strategies and gained insight into his emotions and reactions.  This is seen [SCD] demonstrate implementation of strategies learnt and being able to reflect on how they have assisted him.  [SCD] has been able to discuss his concerns and find ways of managing them appropriately.

   During the time [SCD] has been attending our service at no stage has he given any indication that he is a threat to himself or the community.  [SCD] is at no time has given any indication that he would use weapons when he is distressed or angry.  [SCD] has learned strategies to assist him in managing his anger and distress and continues to attend our service to strengthen these.[29] 

   [29]KA’s letter dated 31 May 2019.

4. At the time that KA wrote her letter, she suggested that SCD had learned strategies to assist him in managing his anger and distress, and he continued to attend her service to strengthen those issues.  It is noted that she wrote that letter in May 2019, and almost 11 months had passed until the date of the hearing. 

5. Notwithstanding the suggestion that SCD had continued to attend counselling with KA, there was no evidence produced to validate or support any suggestion that the counselling had continued after May 2019.  Nor was there any evidence there had been a therapeutic benefit arising from the counselling undertaken; or any identification made of the strategies involved or learnt by SCD, or how he planned to identify when those strategies should be implemented.

   SD

6. SD is the General Manager of SCD’s employer.  SCD did not call SD to give evidence at the Tribunal hearing.  Instead, he relied upon an undated and unsigned document from SD.  The contents were –  

   I have been asked by [SCD] to supply a letter of requirement for his weapons licence and firearm category.

   [SCD] currently works for our company and has done for the past 3-4 years as a security guard / Crowd Controller.

   Moving forward with growth and expanding our services into CIT (cash in transit), to obtain more work and job security, [SCD] would need to hold this license function.

7. SD’s letter does not provide any assistance to the Tribunal as to whether SCD is a fit and proper person to hold a firearm licence.  During his employment with SD’s company, SCD did possess a firearm licence, however that licence did not authorise him to possess a firearm during the course of his employment.

   Assessment of the SCD’s case and the supporting evidence

8. In his submissions, SCD addressed the Tribunal on the principle of fit and proper person.  He placed significant weight upon the New South Wales decision of Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (‘Ward’).  Ward was convicted of assaulting his partner.  He was fined and issued with an Apprehended Violence Order (‘AVO’).[30]  Less than two months after the AVO was issued, it was revoked with the consent of Ward’s partner.

   [30]An Apprehended Violence Order (‘AVO’) is the New South Wales equivalent to a Domestic Violence Protection Order (‘DVO’) pursuant to the Domestic and Family Violence Protection Act 2012 (Qld).

9. Ward’s offence of assaulting his partner was a common assault and did not fall within the category of a prescribed offence as provided for in the New South Wales legislation which includes offences involving the inflection (or attempted inflection) of actual bodily harm to another person.[31]  The deeming feature of the circumstances involving Ward was his assault upon his partner did not fall within that category.  This differs from the Queensland legislation where the Weapons Act prescribes that a person is not a fit and proper person if they have a conviction[32] for an offence involving the use or threatened use of violence.[33]  An offence of unlawful assault involves the use of violence.  Prior to Ward’s conviction for the assault of his partner, his firearm licence was suspended and his licence was later revoked because of policy reasons.  That policy was later found not to align with the legislation so far as revoking a licence for a conviction for common assault.  

   [31]Firearms Act 1996 (NSW), ss 11(5)(b) and 29(3)(b).

   [32]Penalties and Sentences Act 1992 (Qld), s 4. Conviction means means a finding of guilt, or the acceptance of a plea of guilty, by a court.

   [33]Weapons Act 1990 (Qld), s 10B(2)(ii).

1. SCD argued that all the factors in Ward are present in his case, except that SCD has never been convicted of a violent offence.  Although SCD has never been convicted of any offence, I consider Deputy President Hennessy’s comments relevant and appropriate when applied to SCD’s circumstances, that is –

   The Tribunal could never be totally satisfied that a person would not pose a 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.[34]

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

   Fit and proper test

2. In addressing the term ‘fit and proper person’, an express provision of the Weapons Act is that consideration must be given to whether or not SCD is a fit and proper person to be issued with a firearm licence.  The term ‘fit and proper person’ is well known within this jurisdiction, along with the various other jurisdictions in Queensland and other parts of the Commonwealth. 

3. A frequently referenced authority for the term is the High Court decision of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, often referred to as the Bond Media case.  Distinctly, the Bond Media case determined that when assessing whether someone is a fit and proper person, that question it really one of value judgment.  The High Court observed that in seeking an answer to that question, the seriousness of the person’s particular concerning conduct is a matter for evaluation.  An evaluation is also required of what weight, if any, to matters that favour the person whose fitness and propriety is under consideration.[35]

   [35]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 380.

4. The High Court further observed that –

   The expression ‘fit and proper person’ 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.[36]

   [36]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 388.

5. The respondent issued SCD with a revocation notice because he was involved in a domestic violence incident that led to him threating self-harm by the use of one of his own firearms.  The revocation notice advised him that it was no longer in the public interest for him to hold a firearm licence because he was not a fit and proper person to hold that licence. 

6. SCD proposes that he is a person of good character, and an example is his unblemished police record and his employment with a security company.  He also suggests that significant weight should be given to the comments made by his treating doctor (Doctor RE), his treating psychiatrist (Doctor SH) and his counsellor (KA).  However, as the Bond Media Case requires, it is a matter for evaluation or what weight, if any the evidence favours SCD’s fitness and propriety.

   Public interest test

7. Where the public interest term is used in legislation, this creates scope for the application of a flexible value judgment to be made, but only in so far as the subject matter and the scope and purpose of which the Weapons Act enables.[37]  This will often depend on a balancing of interests.

   [37]O’Sullivan v Farrer & Anor (1989) 168 CLR 210, 216.

8. SCD acknowledges that a major consideration in the exercise of the application of the discretionary authority within the Weapons Act is the public interest test.  The term ‘in the public interest’ was enunciated by the High Court in Sinclair v Mining Warden at Maryborough(1975) 132 CLR 473 where it was held that the public interest test is an indivisible concept.[38]  The term is said to be an interest common to the public at large or a significant portion of the public.  It adopts issues, among others, the standards of human conflict and of the functioning of government and government agencies for the good order of society and for the wellbeing of members of society.[39]

   [38]Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473, 487.

   [39]Director of Public Prosecutions v Smith [1991] 1 VR 63 citing Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473.

9. In his submissions, SCD urged that the revocation of his firearm licence could not be upheld on the grounds of public interest.  He relied upon the public interest as discussed in the Appeal Division of the New South Wales Administrative Decisions Tribunal in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 (‘Toleafoa’).  I do not agree with SCD that the decision cannot be upheld.  Public interest is an inherently broad concept allowing the Tribunal to have regard to a wide range of issues in choosing whether to exercise the discretion adversely to SCD.[40]     Importantly, in Toleafoa’s case it was explained that –    

   … it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.[41]

   [40]Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25].

   [41]Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25]

10. What that principle implies is that in circumstances where the fit and proper test is not provided for in the legislation, then consideration should turn on the public interest test.  If that principle is to be applied to SCD’s circumstances, it does not assist him as the Weapons Act specifically obligates the respondent to consider SCD’s suitability on a fitness and propriety basis having regard to his mental fitness.[42]  

    [42]Weapons Act 1990 (Qld), s 10B(1)(a).

11. Overall, I do not agree with SCD’s submission that the revocation of his firearm licence cannot be upheld because of the public interest test.  In my view, it is a nonsensical argument that any consideration about the revocation of a firearm licenced cannot take in circumstances whereby a person who was licenced to possess firearms engages in domestic violence arising on the background of a mental illness or a mental breakdown.  I would have thought that it was contrary to not only to the legislation, but also to the interests of the public for a person to maintain his licence to possess a firearm under those circumstances. 

12. The Tribunal has to be satisfied of the existence of protective factors which sufficiently mitigate any concerns that were earlier evident by SCD’s behaviour and his threats to self-harm.  In regard to the situation where SCD experienced a mental health issue, it is my determination that if that mental health issue impacted upon SCD to the point where he displayed concerning or aggressive behaviour, then the Tribunal is entitled to know what, if any, are the risks of the repetition of that behaviour.  That is important information that would assist in assessing whether there is a future risk should SCD be issued with a firearm licence.  

13. In conclusion, I do not accept that it is sufficient for SCD to solely rely upon him attending counselling to address any concerns about his fitness and propriety.  He must demonstrate by the use of evidence that the counselling greatly reduced the risk of him being susceptible to self-harm or harm to others in stressful situations.  Evidence has to be provided that shows he is able to identify the triggers of the concerning behaviour, along with evidence that he is able to cope with and overcome any urge to act in an aggressive or inappropriate manner.  The evidence which SCD relies upon falls short of what I believe is the threshold to satisfy that criteria just discussed.

    Decision and Orders

14. Overall, I am satisfied that evidence exists to confirm the respondent’s decision that SCD is not a fit and proper person to possess a firearm licence, and it was not in the public interest for him to be issued with a licence. 

15. The evidence to support SCD’s application for a review of that decision falls short of the threshold required to show that he is a fit and proper person to be issued with a firearm licence.  Until that threshold is fulfilled, I am satisfied that in addition to him not being a fit and proper person, it is not in the interest of the public for him to be issued with a firearm licence so that it could be safely concluded that there was little or no likelihood of him breaching the principles of the Weapons Act.    

16. Having regard to the evidence before the Tribunal at the time of the review hearing, I am satisfied that the correct and preferable decision is to confirm the decision of the Queensland Police Service Weapons Licensing dated 30 April 2019 to revoke SCD’s firearm licence.

17. I have considered what potential impact the identification of SCD in these proceedings may have on his mental health.  Because of that mental health issue, and its impact upon the incident of domestic violence within SCD’s family unit, respect should be given to the privacy of innocent members of his family.  Having regard to those features, I am satisfied that the appropriate step is to  prohibit the publication of the contents of any document or thing filed in or produced to the Tribunal and any evidence given to the Tribunal by any witness to the extent that it could lead to the identity of the applicant or any member of the applicant’s family or any non-party to the proceedings.