Stanway v Queensland Police Service Weapons Licensing Branch (No 2)
[2012] QCAT 262
•27 June 2011
| CITATION: | Stanway v Queensland Police Service Weapons Licensing Branch (No 2) [2012] QCAT 262 |
| PARTIES: | Adam Luke Stanway |
| v | |
| Queensland Police Service Weapons Licensing Branch |
| APPLICATION NUMBER: | GAR273-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 22 June 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 27 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The decision of the Queensland Police Service dated 10 August 2011 is varied by deletion of the following condition: 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. |
| CATCHWORDS: | WEAPONS LICENSING – where standard conditions imposed on Weapons Act licence – whether a reviewable decision – whether conditions “legislatively imposed” Weapons Act1990, ss 11, 13, 15(4), 49A Magin v Chief Executive, Office of Liquor & Gaming Regulation and Anor [2012] QCAT 215 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Adam Stanway |
| RESPONDENT: | Sergeant C Bradford, Queensland Police Service |
REASONS FOR DECISION
I have previously determined that the tribunal has jurisdiction to review the imposition of conditions on Mr Stanway’s Weapons Act licence. Three conditions were imposed:
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.
Mr Stanway says that the conditions should not have been imposed. He says:
a)The imposition of the conditions was an inflexible application of a rule or policy and an improper exercise of power.
b)The Service failed to take into account relevant considerations.
c)The conditions were imposed at the behest of another person, were unreasonable and were imposed on no evidence or other material to justify the decision.
The role of the tribunal in review proceedings has been aptly summarised by Member Howard[1]:
There is no presumption that the decision-maker is correct, or that it has considered the appropriate matters when it made its decision. It is not necessary for the decision-maker to have made an error in reaching its decision for the Tribunal to reach a different conclusion. The Tribunal’s role is to consider it afresh.
[1]Magin v Chief Executive, Office of Liquor & Gaming Regulation and Anor [2012] QCAT 215 at [11].
Therefore, my task in this review is not to consider whether the Service properly explained its policy for the imposition of conditions, or whether there were, in fact, any policy documents. Instead, pursuant to s 15(4) of the Weapons Act 1990, I stand in the shoes of the authorised officer who approved Mr Stanway’s application and must decide whether the licence should be subject to any conditions.
Relevantly, the authorised officer may impose conditions:
a)Limiting the use or possession of a weapon[2].
b)Prescribed under a regulation and applying to the weapon[3].
c)That the authorised officer considers appropriate in the particular circumstances[4].
[2] Section 15(4)(i) of the Weapons Act 1990.
[3] Section 15(4)(ii).
[4] Section 15(4)(a)(iv).
Mr Stanway says that conditions RE1 and SC1, although imposed by reference to the regulations, are not prescribed by regulation. He says that that the use of the word “the” in s 15(4)(a)(ii) means that the condition must be imposed on a particular weapon and none has been described. Mr Stanway therefore argues that these conditions have been imposed under s 15(4)(a)(i) or (iv). He argues that the conditions do not more than restate the “vast existing scheme of offences”, they do not advance the objects of the Act and there was no mischief identified that the conditions would correct.
Mr Stanway also argues that he is a responsible person “beyond the scope” of the fit and proper person test. He says that he can be relied upon not to misuse the licence and that the Service has not suggested that his particular circumstances merit the imposition of “additional” conditions on his licence.
The Service argues, essentially, that the imposition of conditions is appropriate as part of a strict regime for the control of firearms.
The parties agree that the comments of Ms Fitzgerald in Tolley v Commissioner for Police, NSW Police[5] accurately reflect the approach that I should take to the licensing regime and the imposition of conditions:
a)I can impose such conditions as I think fit.
b)The discretion to impose conditions is very broad and the Act gives no indication as to how it is to be exercised.
c)The Act sets up a comprehensive scheme for licensing which confirms that firearm possession is a privilege conditional upon the overriding need to ensure public safety.
[5] [2006] NSWADT 149 at [25] to [30].
[10] Mr Stanway, however, argues that there is nothing in Tolley that justifies the imposition of conditions.
[11] Section 3(1)(a) of the Act which that a principle underlying the Act is that:
Weapon possession and use are subordinate to the need to ensure public and individual safety.
[12] The objects of the Act are to be achieved by[6]:
a)Establishing an integrated licensing and registration system scheme for all firearms.
b)Requiring a person to demonstrate a genuine reason for possessing a firearm.
c)Providing strict requirements that must be satisfied for licenses authorising the possession of firearms.
d)Ensuring that firearms are stored and carried in a safe and secure way.
[6] Section 4.
[13] As I have already identified, s 15(4) permits the imposition of conditions.
[14] Section 49A(1) states that a licence authorises a licensee to possess and use a weapon or category of weapon endorsed on the licence for any lawful purpose. Section 49A(2) makes it clear that the authority to possess or use a firearm is subject to a regulation condition or a participation condition.
[15] As I read the interaction between ss 4, 15 and 49A, the purpose of conditions is to identify the lawful purpose for which Mr Stanway may possess and use a firearm within an “integrated licensing and registration system scheme”. By endorsing those purposes on the licence, the Service can quickly and easily identify whether a person such as Mr Stanway is lawfully using or possessing a firearm. In that sense, the regime is no different from the endorsement on a drivers’ licence identifying what classes of vehicles a person is permitted to drive or whether the driver is required to wear spectacles. The imposition of conditions is the mechanism by which the endorsements appear on the licence.
[16] The Act makes it clear that there is no automatic right to possess and use a firearm. The privilege to do so, by the grant of a licence, is subordinate to the need to ensure public and individual safety.
[17] The conditions reinforce and enhance the legislative scheme. The fact that the licence conditions go further and articulate the legislative responsibilities of a possessing and using a firearm do not mean that they are unnecessary, as Mr Stanway has argued. On the contrary, the conditions provide a shorthand list of the rights and obligations of a licensee which, as Mr Stanway conceded, are otherwise spread throughout numerous pieces of legislation including the Weapons Act 1990. I consider that it is reasonable to impose conditions to ensure that the legislative objectives are met.
[18] That said, it is appropriate that I consider each condition in turn.
RE1 – RECREATIONAL SHOOTING A & B
[19] Mr Stanway has been granted a licence for recreational shooting. It is listed as a secondary “genuine reason” on his application.
[20] Pursuant to s 13(3) of the Act, Mr Stanway should have produced written permission from a landowner authorising him to shoot on the landowner’s rural land. The Service has annexed a copy of Mr Stanway’s application yet there is no such authority produced.
[21] The Authority told me that the genuine purposes of recreational shooting and shooting club are bundled so that a person who is given an SC1 condition is automatically given an RE1 condition.
[22] To me, the genuine reason of recreational shooting is quite different from the genuine reason of club shooting. Recreational shooting on private land necessarily implies hunting which involves shooting at live moving targets. It does not enjoy the same level of supervision as target shooting and has much greater risk to both the hunter and members of the public.
[23] Mr Stanway told me that he has does not have any landowner’s consent to shoot on the land, he has not hunted before but he wants the opportunity to hunt if it becomes available. I am not satisfied that Mr Stanway meets the test of having a genuine reason for a licence on the basis of recreational shooting.
[24] As I pointed out to Mr Stanway, I consider that removing this condition from his licence, as I propose to do, means that he is not permitted to possess or use a firearm for the purpose of recreational shooting.
SC1 – SHOOTING CLUB: CAT A & B
[25] Mr Stanway did produce evidence of his membership of a shooting club at the time of application. It is an appropriate condition of his licence that he be permitted to possess and use a firearm as part of his membership of a shooting club.
SC2 – SHOOTING CLUB: FINANCIAL MEMBERS
[26] Condition SC2 is not a condition prescribed by regulation.
[27] Mr Stanway says that a person does not need to be a member of a shooting club to shoot at an approved range. He says that visitors, both licensed, and unlicensed, often shoot at an approved range.
[28] That is true, but s 53 of the Act imposes particular obligations on the range officer if an unlicensed person is shooting. The conditions include a requirement that the range officer is satisfied that the person is not an excluded person and that the person is supervised at all times. If the shooter is a licensee or member of another club, the range officer must be satisfied that the shooter is meeting the conditions of the licence or is otherwise suitable to shoot.
[29] What this condition really does is reinforce the legislative regime that:
a)Sport or target shooting is a genuine reason for possessing a weapon [s 11(a)].
b)The evidence of a genuine reason for possessing a weapon for sport or target shooting is proof that the person is a current member of an approved shooting club [s 13(2)].
c)An object of the Act is to provide strict requirements for licences and to ensure that there is an integrated licensing and registration scheme.
[30] Like many other legislative regimes, this condition delegates some of its supporting functions to club level. A person cannot be a member of the Queensland Military Rifle Club (for example) without providing two character references, thereby showing that the member is a fit and proper person. The club provides the instruction necessary to obtain a safety certificate and members agree to abide by the Constitution and safety rules of the Club.
[31] By requiring a licensee to be a continuing member of a shooting club, the condition ensures that the licensee continues to observe rules and protocols concerning firearms and has access to training. The condition also ensures that clubs are funded to provide services to members which enhance the regime of firearm safety and control. It would be a disservice to the sport as a whole if licensees could join a club, pay for one year’s membership and then, effectively, have no further involvement or contact with a club yet continue to claim that membership of a sporting club as a genuine reason for possessing a firearm.
[32] As Mr Stanway pointed out, membership of a club does not mean that a licensee must or even will shoot. It does, however, easily demonstrate that the licensee has a genuine purpose for possessing and using a firearm.
General matters
[33] Mr Stanway effectively says “You can trust me. I am an active member of the church and there is no evidence that I have done anything wrong, so why do I need conditions imposed on my licence?”
[34] The advantage of the regime as it is presently applied is that the Service is not required to make a subjective assessment of the likelihood that a person will continue to comply with the regime. Further, the imposition of conditions clearly flags to a person holding a licence that these things are important to the maintenance of a licence and the scheme as a whole.
[35] Indeed, if I had any regard to Mr Stanway’s personal circumstances, it would be to point out that he has acknowledged previous non-compliance with the requirements imposed on the holding of a drivers’ licence in that he did not update his address within 28 days. In my view, that fact alone highlights the need for the obligations consequent upon the holding of a weapons licence to be articulated clearly and prominently. The imposition of conditions as framed achieve that purpose.
Orders
[36] The decision of the Queensland Police Service dated 10 August 2011 is varied by deletion of the following condition:
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.
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