Stanway v Queensland Police Service Weapons Licensing Branch
[2012] QCAT 104
•14 March 2012
| CITATION: | Stanway v Queensland Police Service Weapons Licensing Branch [2012] QCAT 104 |
| PARTIES: | Adam Luke Stanway |
| v | |
| Queensland Police Service Weapons Licensing Branch |
| APPLICATION NUMBER: | GAR273-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 14 March 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 14 March 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The tribunal does have jurisdiction to review the imposition of conditions on Mr Stanway’s Weapons Act licence. [2] By 28 March 2012, the Queensland Police Service must file with the Tribunal and give to Mr Stanway the following documents: a) A written statement of reasons (if that has not already been filed in the Tribunal and given to Mr Stanway); and b) An indexed and page numbered bundle in date or other logical order of the documents and other material in its possession or under its control which are relevant to the Tribunal’s review of the decision. [3] Mr Stanway must file in the Tribunal and give to the Queensland Police Service: a) A response to the statement of reasons; and b) Any document not contained in the Queensland Police Service bundle of documents upon which Mr Stanway proposes to rely by 13 April 2012. [4] The application is listed for a directions hearing in Brisbane at 1.30 pm on 18 April 2012. |
| CATCHWORDS: | WEAPONS LICENSING – where standard conditions imposed on Weapons Act licence – whether a reviewable decision – whether conditions “legislatively imposed” Weapons Act1990, ss 11, 13, 14, 15(4), 24, 25, 142(1)(d) Newcastle City Council v GIO General Limited (1997) 1919 CLR 85 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Adam Stanway |
| RESPONDENT: | Sergeant C Bradford, Queensland Police Service |
REASONS FOR DECISION
On 10 August 2011, the Weapons Licensing Branch of the Queensland Police Service issued Mr Stanway a Weapons Act licence. The licence was indorsed with 3 conditions:
a)RE1 – RECREATIONAL SHOOTING A & B This licence authorises the licensee to have possession of and use registered category A & B weapons for the purpose of recreational shooting on rural land, only with the express consent of the owner. All weapons are to remain in secure storage unless otherwise authorised, justified or excused by law.
b)SC1 – SHOOTING CLUB: CAT A & B This licence authorises the licensee to have possession of and use registered category A & B weapons for the purpose of sports or target shooting at an approved range. All weapons are to remain in secure storage unless otherwise authorised, justified or excused by law.
c)SC2 – SHOOTING CLUB: FINANCIAL MEMBERS The licensee is to remain a financial member of an approved Shooting Club.
The question I am asked to decide is whether the imposition of those conditions is a reviewable decision for which the tribunal has jurisdiction.
The tribunal’s jurisdiction, if any, is conferred[1] by the Weapons Act1990. Section 142(1)(d) of the Weapons Act 1990 provides that an aggrieved person may apply to the tribunal for a review of “a decision imposing or amending a condition applying to a licence, permit, approval or other authority under this Act”.
[1] Section 17(1) Queensland Civil and Administrative Tribunal Act 2009.
Mr Stanway says that the imposition of conditions on his licence is a decision under s 142(1)(d).
Sergeant Bradford, for the Service says:
a)The conditions are “legislated” by the operation of the Act. Sergeant Bradford submitted that, because s 13(2) requires an applicant to provide proof of membership of an approved shooting club, the imposition of a condition that Mr Stanway remain a member of a shooting club was necessarily required by the legislation. Sergeant Bradford advanced a similar argument in relation to the need for express consent from a landowner (s 13(3)) and the requirement to keep weapons secure (s 10(2)(c)).
b)Because there is no discretion to impose these legislated conditions, the imposition of conditions is not a reviewable decision.
c)Conversely, s 142(1)(d) is relevant to the imposition of other conditions, such as those relating to the public interest test (s 10B)(1)(d)).
d)Mr Stanway should have first applied under s 25 for an amendment of the licence conditions because that is a reviewable decision under s 142.
e)If the tribunal finds that the imposition of conditions is a reviewable decision, that would have a serious negative impact on the Service’s ability to achieve the objects of the Weapons Act 1990. The Service would have to issue an information notice every time it issued a licence and every one of those decisions would be reviewable. The Service considered that it will receive many frivolous applications of review.
f)Mr Stanway was issued with the licence he applied for and was treated no differently from any other applicant.
g)The tribunal should adopt the purposive test when interpreting the Weapons Act 1990.
It is important to set out the legislative framework for the imposition of conditions and the process itself.
A licence will only be issued[2] if the applicant:
a)Has adequate knowledge of safety practices for the use, storage and maintenance of the weapon.
b)Has access to secure storage facilities.
c)Is not prevented from holding a licence (by Act or Court order).
d)If a fit and proper person.
e)Has a reason to possess the weapon.
[2] Section 10(2).
Section 11 sets out the reasons for possession of a weapon and when applying for a licence, an applicant is asked to nominate which of the reasons apply. If the application is for a sports or target shooting, the applicant must provide proof that s/he is a current member of an approved shooting club.[3] If the application is for recreational shooting, the applicant must produce either written permission from a landowner authorising the applicant to shoot on the landowner’s rural land or proof that s/he is a current member of an approved shooting club.[4]
[3] Section 13(2).
[4] Section 13(3).
Section 15(4) provides that the authorised officer must approve the application and issue the licence subject to any conditions the authorised officer may decide including but not limited to conditions prescribed under a regulation and applying to the weapon.[5]
[5] Section 15(4)(a)(ii).
[10] Section 14A of the Weapons Regulation1996 provides that a condition may be stated on a licence by a Code and the Code in schedule 1A that is stated on a licence is taken to be the corresponding condition in schedule 1A.
[11] Both Mr Stanway and Sergeant Bradford referred me to the purposive test when interpreting the Weapons Act 1990. Mr Stanway says that the test is only applied if the ordinary meaning of the legislation is uncertain. Sergeant Bradford referred me to s14A of the Acts Interpretation Act1954. Justice McHugh considered the equivalent Commonwealth provision in Newcastle City Council v GIO General Limited[6]. He said[7]
"When the express words of a legislative provision are reasonably capable of only one construction and neither the purpose of the provision nor any other provision in the legislation throws doubt on that construction, a court cannot ignore it and substitute a different construction because it furthers the objects of the legislation.”
[6] (1997) 1919 CLR 85.
[7] Supra at [109].
[12] That is the position here. Neither party has suggested that the ordinary meaning of the Weapons Act 1990 is obscure. There is no justification for applying the purposive test simply to further the objects of the Act.
[13] The sections of the Act and Regulation that deal with the imposition of conditions are, in all cases, framed as permissive rather than mandatory. In particular, section 14A of the Regulation does not “prescribe” the imposition of conditions, it merely identifies them in a shorthand way in the event that an authorised officer decides to impose conditions of that nature.
[14] The discretionary nature of the power to impose conditions was implicit in the decision of Justice McPherson in Hildebrand v Coyne[8]:
“In determining an application for a licence, the authorised officer had power under s 15(4)(b) to reject it, or under s 15(4)(a) to approve it and issue it subject to conditions limiting the use or possession of the weapon. Any conditions attached under s 15(4)(a) were, by s 16(1)(b) to be indorsed on the licence.”
[8] [2003] QCA 500 at [4].
[15] His Honour did not suggest that some conditions were imposed by the legislation and his use of the word “any” suggests otherwise.
[16] I agree with Mr Stanway‘s submission a right to apply for an amendment of conditions under s 25 of the Act is incompatible with the concept that the conditions are “legislatively” imposed. If the legislation intended the conditions to be mandatory, there would be no point in allowing a right to apply for the amendment of those conditions.
[17] There is one condition imposed by the legislation. Section 24(1) states:
“It is a condition of each licence that the licensee must, within 14 days of the happening of an event mentioned in subsection (2) (the change) advise an officer in charge of police of the change and the particulars of the change the officer reasonably requires and deliver the licence to the officer.”
[18] The events in subsection (2) include the matters the subject of the conditions on Mr Stanway’s licence: the reason or need for the possession of a firearm; a change in access to secure storage facilities; or the revocation of permission to shoot on a landowner’s rural land.
[19] Because the Weapons Act 1990 specifically provides for a legislatively imposed condition, and because the language relating to conditions is otherwise permissive rather than mandatory, I am satisfied that the imposition of the conditions on Mr Stanway’s licence was a decision which is reviewable under s 142(1)(d) of the Act. The tribunal does have jurisdiction.
[20] While I am sympathetic to Sergeant Bradford’s argument about the operational difficulties that this decision will present, the legislation provides Mr Stanway with a right to review and I cannot deny him that opportunity.
Orders
[21] The orders should be:
a)The tribunal does have jurisdiction to review the imposition of conditions on Mr Stanway’s Weapons Act licence.
b)By 28 March 2012, the Queensland Police Service must file with the Tribunal and give to Mr Stanway the following documents:
i) A written statement of reasons (if that has not already been filed in the Tribunal and given to Mr Stanway); and
ii) An indexed and page numbered bundle in date or other logical order of the documents and other material in its possession or under its control which are relevant to the Tribunal’s review of the decision.
c)Mr Stanway must file in the Tribunal and give to the Queensland Police Service:
i) A response to the statement of reasons; and
ii) Any document not contained in the Queensland Police Service bundle of documents upon which Mr Stanway proposes to rely by 13 April 2012.
d)The application is listed for a directions hearing before me in Brisbane at 1.30 pm on 18 April 2012.
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