XPR v Queensland Police Service - Weapons Licensing - [2025] QCAT 1

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

XPR v Queensland Police Service – Weapons Licensing [2025] QCAT 1

PARTIES:

XPR

(applicant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

GAR493-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 January 2025

HEARING DATE:

29 November 2023

HEARD AT:

Brisbane

DECISION OF:

Justice Mellifont, President
Member Olding

ORDERS:

1.     The decision under review is set aside and substituted with a decision granting the applicant’s application for a weapons licence.

2.     Publication of any material that may identify the applicant is prohibited.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – GENERALLY – where the applicant’s application for a firearms licence was refused – where the applicant was charged and found guilty under the Drugs Misuse Act – where no convictions were recorded – where authorised officer had regard to such convictions - whether such convictions can be taken into account in decision to grant or refuse weapons licence

Weapons Act 1990 (Qld), ss 10, 10B

Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), 5(2)
Penalties and Sentences Act 1992 (Qld), s 12

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1)

Betson v Queensland Police Service– Weapons Licensing [2023] QCAT 334

Cobiac v Liddy (1969) 119 CLR 257
Fulton v Chief of the Defence Force [2023] FCAFC 134; (2023) 300 FCR 623
GKR v Queensland Police Service – Weapons Licensing [2023] QCAT 335
Grobler v Queensland Police Service [2023] QCAT 103
Hartwig v PE Hack [2007] FCA 1039
Keen v Queensland Police Service – Weapons Licensing [2019] QCAT 235
Lane v Queensland Police Services Weapons Licensing [2024] QCAT 145
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) 276 CLR 136
R v Beissel [1996] QCA 486; (1996) 89 A Crim R 210
R v Briese; ex parte Attorney-General [1997] QCA 10; [1998] 1 Qd R 487
R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467; (2005) 158 A Crim R 488
R v Gallagher; ex parte Attorney-General [1999] 1 Qd R 200; (1997) 98 A Crim R 513

R v Jerome and McMahon [1964] Qd R 595

APPEARANCES & REPRESENTATION:

Applicant:

Respondent:

Self-represented

M Carey, Queensland Police Service

Table of Contents

Background

A key issue for determination

The Weapons Act

Section 10B(1)(ca) – “criminal intelligence or other information” not relied on by QPS

Section 10B(2) – “person deemed not to be a fit and proper person if drug conviction within a relevant period” not relied on by QPS

Penalties and Sentences Act provisions

Section 12(3)(a): conviction taken not to be a conviction for any purpose

Analysis of the approach taken by the decision-maker

What about Hartwig v PE Hack? Does it determine the decision under consideration here?

Conclusion

Submission of the QPS

What is the correct approach to section 12(3) of the PSA vis-a-vis section 10B of the WA?

The Criminal Law (Rehabilitation of Offenders) Act (“CLROA”)

The evidence on review

Conclusion and orders

Non-publication

REASONS FOR DECISION

Background

On 21 September 2021, XPR made an application to the Queensland Police Service for a firearms licence. On 5 October 2022, an authorised officer within Weapons Licensing at QPS issued a notice of rejection. The reason given for rejection was that it was “not considered to be in the public interest that XPR hold a licence authorising the possession of weapons”. The information notice stated that:
Checks conducted by this office in relation to your criminal history have revealed the following:
I note that on the 16^th December, 2021, you attended the Cairns Magistrates Court to answer to Drugs Misuse Act charges, namely Producing Dangerous Drugs and Possession Dangerous Drugs. I note that you were found guilty, convicted and fined with the conviction not recorded.
I considered R v Beissel [1996] QCA 486; (1996) 89 A Crim R 210
Principle applied: A person who has been convicted of a criminal offence has a criminal conviction, whether or not it is formally recorded, and that being so, the court should not in my opinion lend its aid to attempts to conceal that fact. It is no part of the court’s function to minimize the seriousness of these offences with a view to influencing a government instrumentality to disregard or overlook the offences.
I also considered the concept of fit and proper person and the public interest.
Under Section 10B(2) of the Act, it is an automatic disqualification for five years if an applicant has been convicted of a Drugs Misuse Act offence with the conviction recorded.
Section 10B(1) of the Act states:
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 license, an authorised officer must consider, among other things –
(d) the public interest.
You are advised that the conviction of offences, whether recorded or not, relating to charges for traffic or criminal is a consideration in deciding whether you are a fit and proper person to hold a weapons licence.
Having regard to the circumstances including your criminal history in relation to your previous offending I could not be satisfied that you are a fit and proper person to be issued with a licence.
I considered that it was not in the public interest or in accordance with the principles and object of the Act to issue a licence.
XPR applied to QCAT, pursuant to section 142(2) of the Weapons Act 1990 (Qld) (“WA”), for a review of the decision. The purpose of the review is to produce the correct and preferable decision: section 20(1), Queensland Civil and Administrative Tribunal Act 2009. The review is by way of a fresh hearing on the merits: section 20(2). In exercising its review decision, QCAT has all the functions of the decision-maker for the decision being reviewed: section 19(c), QCAT Act.
In the course of submissions, the QPS confirmed that the sole reason for the QPS maintaining the position that XPR is not a fit and proper person to hold a licence is because of the 2021 drug offences.

A key issue for determination

A key issue for determination in this case is whether it is permissible to take into account convictions which are not recorded. This issue has been the subject of conflicting decisions in QCAT.[1]
[1]See, for example: Lane v Queensland Police Services Weapons Licensing [2024] QCAT 145; Grobler v Queensland Police Service [2023] QCAT 103; GKR v Queensland Police Service – Weapons Licensing [2023] QCAT 335; and Betson v Queensland Police Service – Weapons Licensing [2023] QCAT 334.
Section 12(3) of the Penalties and Sentences Act 1992 (Qld) (“PSA”) provides that a conviction without recording the conviction is taken not to be a conviction for any purpose, and prohibits the entering of the conviction into any records except for stated purposes.
For reasons which we will set out in detail below, we find that the 2021 drug offences cannot be taken into account in the decision as to whether to issue a licence to the applicant because no convictions were recorded in respect of them.

The Weapons Act

The principles underlying the WA are:
(a)Weapon possession and use are subordinate to the need to ensure public and individual safety; and
(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.[2]
[2]Section 3(1), WA.
The object of the WA is to prevent the misuse of weapons.[3]
[3]Section 3(2), WA.
That object 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.[4]
[4]Section 4, WA.
A licence may be issued, renewed, endorsed or altered only by an authorised officer.[5]
[5]Section 9, WA.
Section 10(2) of the WA provides that a licence, other than a minor’s licence, may be issued to an individual only if the person:
(a)is an adult;
(b)has, under section 10A,[6] 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 this 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.[7]
[6]Section 10A(1) provides that a person has an adequate knowledge of safety practices for the use, storage and maintenance of a weapon or category weapon if the person complies with subsection (2), (3) or (4).
[7]Section 10(2), WA.
In this case, the only criterion in dispute is whether the applicant is a fit and proper person.
Section 10B(1) sets out the matters, “amongst other things”, that must be considered in deciding whether a person is fit and proper to hold a licence. They are:
(a)the mental and physical fitness of the person; and
(b)whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; and
(c)whether the person has stated anything in or in connection with an application for a licence, or an application for the renewal of a licence, the person knows is false or misleading in a material particular;
(ca)whether there is any criminal intelligence or other information to which the authorised officer has access that indicates –
(i) the person is at risk to public safety; or
(ii) that authorising the person to possess a weapon would be contrary to the public interest; and
(d)the public interest.
The QPS submit that in considering the public interest (as referred to in section 10B(1)(d)), because of the commission of the 2021 offences, the applicant is not currently a fit and proper person to hold a license.

Section 10B(1)(ca) – “criminal intelligence or other information” not relied on by QPS

The QPS do not rely on section 10B(1)(ca), that is, the QPS do not submit that there is “any criminal intelligence[8] or other information to which the authorised officer has access that indicates the person is a risk to public safety or that authorising the person to possess a weapon would be contrary to the public interest”.
[8]Criminal intelligence is defined in schedule 2 to the WA as “in relation to a person, means any information about the person’s connection with or involvement in criminal activity”.
We do not suggest that the QPS should have relied upon this provision. To do so would be to impermissibly traverse the prohibition which flows from section 12(3) of the PSA. In this regard, we agree with the observations made in Grobler v Queensland Police Service.[9]

Section 10B(2) – “person deemed not to be a fit and proper person if drug conviction within a relevant period” not relied on by QPS

[9][2023] QCAT 103, at [37]-[39]. There, Member Howe stated:

I comment for completeness on a concession made on the part of Mr Grobler at hearing that the charges against Mr Grobler in the Magistrates Court at Mareeba might be available for consideration on the basis of criminal intelligence.

Apart from that proposition not being tenable given my finding about the effect of s 12(3) Penalties and Sentences Act, I note that in any case by s 18(7) of the Act concerning rejecting renewal or a licence on the basis of criminal intelligence and s 29(3) on similar basis, the criminal intelligence may only be acted on if the Commissioner or Deputy Commissioner, acting personally, approves that be done.

There is no evidence of any such approval having ever been given here. That is surely a threshold requirement for use of such information, both for the authorised officer of police determining the renewal or revocation, and too for the Tribunal.

Section 18(7) of the WA provides that if the authorised officer is acting on the basis of criminal intelligence or other information of the kind mentioned in ss 10B(1)(ca) or 10C(1), the authorised officer may reject the application because the person is not a fit and proper person only if the commissioner or deputy commissioner, acting personally, approves that the application be rejected on that basis.

Section 10B(2) provides that 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 a person.
“Relevant period” for the purpose of this provision for the issue of a licence is the 5 year period before the day the person applies for the issue of the licence.
It is plain that the applicant was convicted of offences relating to the misuse of drugs within 5 years of his application for the issue of a licence: he was convicted of production and possession of a dangerous drug in 2021, his application for a weapons license was made in 2023.
If section 10B(2) applied, it would operate so as to deem the applicant not to be a fit and proper person.
The QPS do not rely on section 10B(2). We do not suggest that they should. Given section 12(3) of the PSA provides that a conviction which is not recorded is taken not to be a conviction for any purpose, the 2021 drug offence convictions are taken not to be convictions for the purpose of section 10B(2). As such, section 10B(2) is not invoked.[10]
[10]We note that the same conclusion was reached in Keen v Queensland Police Service – Weapons Licensing [2019] QCAT 235, [21] and Grobler v Queensland Police Service [2023] QCAT 103, [21].

Penalties and Sentences Act provisions

Section 12(1) of the PSA provides that a court may exercise a discretion to record or not to record a conviction under the PSA. Several sentencing options permit the exercise of this discretion, for example, fines, probation orders and community service orders.
It is plain enough that a person who has been convicted of a criminal offence has a criminal conviction in the sense in which it is commonly used, that is, the “court’s acceptance of the verdict or of the offender’s plea of guilty”, whether or not it is formally recorded.[11] This common meaning of conviction is statutorily entrenched by section 4 of the PSA which defines conviction as “a finding of guilt, or the acceptance of a plea of guilty, by a court.”
[11]See R v Gallagher, ex parte Attorney-General [1999] 1 Qd R 200, 203; citing R v Jerome and McMahon [1964] Qd R 595, 602-603.
The process of recording a conviction is a further step. As stated by McPherson JA in R v Gallagher, ex parte Attorney-General, “the process of recording a conviction is something else[12] again, and assumes that there has already been a conviction that is capable of being recorded”.[13]
[12]That is, something else other than the court’s acceptance of a verdict or the offender’s plea of guilty.
[13][1999] 1 Qd R 200, 203.
The PSA then expressly sets out consequences of the non-recording of a conviction. In that regard, section 12(3) of the PSA provides that:
(3) Except as otherwise expressly provided by this or another Act-
(a) a conviction without recording the conviction is taken not to be a conviction for any purpose; and
(b) the conviction must not be entered in any records except –
(i) in the records of the court before which the offender was convicted; and
(ii) in the offender’s criminal history but only for the purposes of subsection (4)(b).
As such, section 12(3) does two things:[14][15]
(a)it creates a statutory fiction: the conviction is “taken not to be a conviction for any purpose”; and
(b)it prohibits the entering of the conviction into any records except:
(i) in the records of the court before which the offender was convicted; and
(ii) in the offender’s criminal history but only for the purposes of subsection (4)(b).
[14]The Explanatory Memorandum for the Penalties and Sentences Bill states, at page 2:
Clause 12 Subject to particular clauses throughout the Act, permits a court a discretion whether or not to record a conviction, sets out the issues to which a court must have regard in determining whether or not to record a conviction, and provides for circumstances in which convictions, ordered not to be recorded, must be entered on a criminal history in order that, if an offender appears before any court on any later charge, regard may be had by that court to previous convictions.
Section 12(4) then provides that the recording of a conviction:
(a)does not stop a court from making any other order that it may make under the PSA or another Act because of the conviction; and
(b)has the same result as if a conviction had been recorded for the purposes of appeals against sentence, proceedings for variation or contravention of sentence, proceedings against the offender for a subsequent offence, and subsequent proceedings against the offender for the same offence.
As such, section 12(4) preserves the ability of the court to make orders under the PSA or other legislation because of the conviction, and preserves the record for the purpose of later criminal proceedings.
The PSA then states that the non-recorded conviction may be disregarded by a court in later sentencing the offender, even though the conviction is entered into the offender’s criminal history: section 12(5).
Section 12(3A) sets out a further exception to the prohibition on entering into records. It provides that “despite subsection (3)(b), the conviction may be entered in a record kept by a department, a prosecuting authority or the offender’s legal representative if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative”.
In summary, when a conviction is not recorded, the legislation puts a prohibition on entering the conviction into records, subject only to express exceptions. Those exceptions are:
(a)the records of the court before which the offender was convicted;
(b)appeals against the sentence, proceedings for variation or contravention of sentence, proceedings against the offender for a subsequent offence, and subsequent proceedings against the offender for the same offence; and
(c)in the records kept by a department, a prosecuting authority or the offender’s legal representative if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative.

In this case, knowledge of the convictions for offences in respect of which convictions were not recorded came to the QPS Licensing Section (and then the Tribunal) by checks conducted by the Office of Weapons Licensing, Specialist Services Group, Operations Support Command, Queensland Police Service. No evidence was placed before the Tribunal as to whether those checks were carried out by a person who had express authorisation, statutory or otherwise, to do so or that the checks were necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative.

Section 12(3)(a): conviction taken not to be a conviction for any purpose

As set out above, section 12(3)(a) creates a statutory fiction: it provides that a conviction without recording the conviction is taken not to be a conviction for any purpose.
Given the definition of conviction in section 4 of the PSA, the effect of section 12(3)(a) is that a conviction without recording the conviction is taken not to be a finding of guilt or the acceptance of a plea of guilty by a court.
We will return later to an analysis of the interplay between the PSA and the WA.

Analysis of the approach taken by the decision-maker

In decisions of this type, it is not uncommon for an authorised officer from weapons licensing to rely on R v Beissel [1996] QCA 486; (1996) 89 A Crim R 210 in their decision to grant or refuse a license.
That occurred in this case. The QPS decision-maker stated that the principle he applied from Beissel was as follows:
A person who has been convicted of a criminal offence has a criminal conviction, whether or not it is formally recorded, and that being so, the court should not in my opinion lend its aid to attempts to conceal that fact. It is no part of the court’s function to minimize the seriousness of these offences with a view to influencing a government instrumentality to disregard or overlook the offences.
Given that these proceedings are a merits review, it is not necessary for the applicant to demonstrate error on behalf of the authorised officer. However, given that the reliance upon Beissel by authorised officers is common, we consider that it may be of some assistance in future cases to provide an analysis of Beissel.
In Beissel, Robert and Kenneth Beissel were each fined $10,000 in respect of three counts of participating in the provision of prostitution. They pleaded guilty in the District Court. Convictions were recorded.
They were the licensee and manager of a hotel in Rockhampton and had engaged women to carry out sex exhibitions and activities at the hotel and on a ship. The activities had a substantial commercial motivation of attracting paying customers. The learned sentencing judge proceeded on the assumption that some thousands of dollars of profit would have resulted. McPherson JA observed that there was a strong element of defiance in their attitude to the law on this matter. The Court of Appeal formed the view that the fines, although high, were within the limits of a proper sentencing discretion.
The Court then concluded that the learned sentencing judge, in exercising the discretion to record convictions, had not erred. On appeal, the applicants sought to tender affidavit evidence which was not before the sentencing judge; evidence showing the consequences for each of the applicants of the recording of a conviction against them. McPherson JA described the intended purpose of the evidence as showing “that if the convictions became known to the licensing authority, or the Auctioneers and Agents Committee, it is possible that it will prejudice the prospects of the applicant in each case of making, or continuing to make, a career of either of those two vocations”. His Honour described that approach as a misapprehension:
[T]he purpose and function of provisions like s 12 to suppose that the provisions they confer are designed to enable the fact that criminal convictions have been sustained to be concealed from bodies or authorities whose duty it is to determine whether or not an applicant is a fit and proper person to be licensed under a particular statute.
In the case of an applicant for a real estate agent’s licence or a salesman’s licence, the affidavit material in this particular case suggests that one question that will be asked of him is whether he has any criminal convictions. A person who has been convicted of a criminal offence has a criminal conviction, whether or not it is formally recorded, and, that being so, the Court should not in my opinion lend its aid to attempts to conceal that fact. Much the same consideration applies to the Liquor Licensing Authority. It is no part of this Court’s function to minimise the seriousness of these offences with a view to influencing a government instrumentality like that to disregard or overlook the offences.
The question is not whether a conviction has been recorded, but whether what was in fact done by the applicant in committing the offences renders him unsuitable to be admitted to, or remain in, the particular occupation in question. I would expect the licensing authority approach the matter in that way. If it does not, there are no doubt other remedies available to ensure that it does so in this case and in future.
This Court should not, in my opinion, be used as a means for pre-empting or influencing the proper exercise of a discretion on such a matter by the duly constituted authority. For these reasons, and more particularly because the Judge considered the matter himself and has not shown to have gone wrong, I consider that the application, so far as it is directed to the recording of convictions, should also be refused.[16]
(emphasis added)
[16]R v Beissel [1996] QCA 486; (1996) 89 A Crim R 210, 212-213.
Justice Dowsett agreed. Justice White, in agreeing with the outcome, and in finding the fines imposed should not be disturbed, observed that the facts of the particular case took it outside the class of usual prostitution cases, involving as it does a “very public flouting of the law”.[17] Her Honour then observed that:
… The applications against recording of a conviction also seem to me to give an unwarranted benefit to the applicants which will have the effect of seeking to hide from the Liquor Licensing Authority and the Department of Consumer Affairs which administers the Auctioneers and Agents Act 1971 conduct which really ought to be taken into account by them when considering the issuing of any such licenses. These are matters which are properly within their discretion and I agree with the learned presiding judge that this Court ought not to lend its authority to anything which would seek to hide conduct which ought to be before those bodies when making those sorts of decisions. …[18]
(Emphasis added)
[17]R v Beissel [1996] QCA 486; (1996) 89 A Crim R 210, 213.
[18]R v Beissel [1996] QCA 486; (1996) 89 A Crim R 210, 213.
It is clear that the way the authorised officer interpreted Beissel was to the effect that a conviction, which was not recorded, could still be had regard to by a licensing authority because otherwise the seriousness of the offences would be minimised if they had to be disregarded. This is not a correct application of Beissel.
Rather, the statement in Beissel relied upon by the authorised officer was a statement directed to sentencing courts who need to decide whether or not to record a conviction.
What the Court of Appeal in Beissel was saying, in effect, was that exercising the section 12 PSA discretion not to record a conviction, for the purpose of attempting to conceal the fact that someone has been convicted of a criminal offence, or for the purpose of attempting to influence a government instrumentality to disregard or overlook the offences, would be to fall into error.
It is clear that an ancillary effect of the proper exercise of the discretion in section 12(1) of the PSA not to record a conviction will be to hide the conviction, and the conduct behind it, from a licensing authority. This is apparent from Beissel: see White J at 213 (quote extracted above at paragraph 42) and McPherson JA, with whom Dowsett and White JJ agreed, at 212 to 213 (quote extracted above at 41). Similarly, in R v Briese; ex parte Attorney-General,[19] the Court observed, in respect of section 12(3) of the PSA, that:
[A]lthough s 12 lacks the detail of the Criminal Law (Rehabilitation of Offenders) Act 1986, it appears to have a similar effect to s 8 of that Act which permits an offender, after the rehabilitation period, to deny ever having been convicted.
…
In essence a provision of this kind, gives an offender a right to conceal the truth, and it might be said, to lie about what has happened in a criminal court.[20]
[19][1997] QCA 10; [1998] 1 Qd R 487.
[20]At 491.
That is not to say that a sentencing court is precluded from exercising the discretion in section 12 of the PSA not to record a conviction. In Briese, the Court of Appeal stated that Beissel:
[S]hould not be taken as laying down a rule that the court must not grant an offender the benefit of non-recording of a conviction whenever it is likely that the offender might come before such a board; it is a stricture to look at the matter carefully to bear in mind the potential harm that may result from the court’s authorising concealment of the truth.[21]
[21]Per Thomas and White JJ at 492.
In conclusion on this issue, the quote from Beissel relied upon by the authorised officer is directed to the sentencing process, not to the licensing process. The manner of reliance by the decision-maker on Beissel was flawed.[22]

What about Hartwig v PE Hack? Does it determine the decision under consideration here?

[22]See also the comment by McGill SC DCJ in Dawson v Tanwan, unreported decision of the District court,10 December 1999, at page 14, in which his Honour referred to the statement of McPHerson JA in Beissel that “A person who has been convicted of a criminal offence has a criminal conviction, whether or not it is formally recorded….” In respect of that quote, his Honour Judge McGill SC stated that “I do not think that His Honour was intending by that statement, which is with respect plainly correct, to stay anything which detracted from the plain meaning of s.12(3) of the Penalties and Sentences Act.”

The construction of section 12(3) of the PSA was considered by Kiefel J (as her Honour then was) in the single judge decision of Hartwig v PE Hack. This was in the context of the operation of section 85ZR of the Crimes Act 1914 (Cth).
The Crimes Act is legislation which contains, inter alia, Commonwealth offence provisions, sentencing provisions, spent conviction provisions and provisions in respect of pardons. (In Queensland, sentencing provisions are contained within the PSA, spent conviction provisions are found within the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) (“CLROA”), and provisions relating to pardons in Queensland are found in the Criminal Code.)
Section 85ZR of the Crimes Act appears in Part VIIC, Division 2. The division heading is “Pardons for persons wrongly convicted, and quashed convictions”.
Section 85ZR(1) provides that where a person has been granted a free and absolute pardon for a Commonwealth or Territory offence because they were wrongly convicted of the offence, the person shall be taken never to have been convicted of the offence. The wording of that provision is as follows:
Despite any other Commonwealth law or any State law or Territory law, where a person has been granted a free and absolute pardon for a Commonwealth offence or a Territory offence because the person was wrongly convicted of the offence:
(a) The person shall be taken, in any State or Territory, for all purposes, never to have been convicted of the offence; and
(b) The person shall be taken, in a foreign country, by any Commonwealth authority or State authority in that country, for all purposes, never to have been convicted of that offence.
Section 85ZR(2) sets out an equivalent result for persons who, under a State or foreign law, are taken never to have been convicted. It provides that:
Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:
(a) The person shall be taken, in any Territory, in corresponding circumstances or for a corresponding purpose, never to have been convicted of that offence; and
(b) The person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence.
That is, as for the situation where a Commonwealth or Territory law pardons someone for being wrongly convicted, if a State or foreign law deems someone never to have been convicted, the person will be taken never to have been convicted of the offence/s.
The matter of Hartwig v PE Hack came before Kiefel J on appeal against a decision of the Administrative Appeals Tribunal (“AAT”) on an application for review of a decision by a licensing authority. The proceedings before the AAT involved a review of a decision refusing the applicant, or his companies, registration under the Motor Vehicle Standards Act 1989 (Cth). An issue which arose for consideration was whether the applicant was a fit and proper person.
The matter did not concern someone who had been pardoned under a State law: Mr Hartwig had been convicted of an offence, in the District Court of Queensland in 2004, on his own plea of guilty. Rather the matter concerned whether section 85ZR(2) applied when a convicted person had received the benefit of a favourable exercise by the learned sentencing judge of the discretion not to record a conviction pursuant to section 12(3) of the PSA.
The AAT took the view that it was open to the Tribunal to have regard to the fact of the District Court proceedings and the conduct that led to those proceedings.
As Kiefel J stated, the question to be resolved before her was “one of the construction of the State Act on the one hand and the Commonwealth legislation on the other”. That is, whether section 12(3) was a provision which provided that the person was, in particular circumstances or for a particular purpose “to be taken never to have been convicted of an offence” for the purposes of section 85ZR(2) of the Crimes Act. It was in that context that her Honour stated:
Section 12(3) of the Penalties and Sentences Act (Qld) requires that no record be kept of a person’s conviction, except for the Court’s purposes concerning an appeal or subsequent offences. It requires that it not count for any purpose, other than those. As McPherson JA pointed out in R v Gallagher (1999) 1 Qd R 200, that does not mean that there is no conviction in the usual sense of the word. ‘Conviction’ usually refers to the Court’s acceptance of a verdict or a plea of guilty.
Section 12(3) of the Penalties and Sentences Act (Qld) works with s 5(2) of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) which provides that a person shall not be obliged to disclose, or be asked to disclose, a conviction that is not part of that person’s criminal history. The effect of the section is not to treat the conviction as not having occurred, but to expunge it from a person’s criminal history. Its purpose is to permit them to conduct their lives, obtain employment, and other benefits, without having to divulge that aspect of their history.
The nature of the State legislation, to which 85ZR of the Crimes Act (Cth) refers, is one which deems a person never to have been convicted of an offence. The effect of the provision must be such as to take away the fact of the conviction, as a pardon might do. It is not without significance that the section is headed ‘Pardons for Persons Wrongly Convicted’. Other legislation of the type to which s85ZR(2) refers maybe that which deems a person not to have been convicted after the lapse of a number of years.
This understanding of the purview of the commonwealth legislation is reinforced by the second reading speech for the Crimes Legislation Amendment Bill 1989 (Cth) Parl Deb H of R (1989) Vol 166 at 2543 where the Attorney-General said:
‘The Bill also inserts a new part into the Crimes Act that will provide for a scheme that will permit old convictions for minor offences to be spent.’
In the resumption of debate, this was referred to as the Spent Convictions Scheme. It was said to be one which prevents any use being made of convictions and punishment incurred by people during a wayward period of their lives, and that the general view is that this should not be held against them ‘forever and a day’. Reference was made to the Spent Convictions Schemes in other states, and discussion was about when a conviction could be said to be spent. Section 9 of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) may be viewed as a provision of this kind. It provides for the circumstances where a person’s fitness for any purpose is to be assessed and requires the person or authority charged with that task to disregard any conviction that is part of the person’s criminal history, where the ‘rehabilitation period’ has expired.[23] That term is defined to refer to a minimum period of five years. It was not suggested that the section could now apply in the present case.
Section 12(3) of the Penalties and Sentences Act (Qld) and s 85ZR(2) of the Crimes Act (Cth) are however dissimilar. The former is concerned that there be no record of a conviction. The commonwealth provision envisages a state legislation provision, which removes or disregards the conviction altogether. Their common purpose might be said to be rehabilitation, but they arise in different ways, and from a different circumstance. In my view, the Commonwealth provision is not referring to a provision such as the non-recording provision in s 12(3) of the Penalties and Sentences Act (Qld). The commonwealth provision does not operate on that provision in the way contended for.
It follows, in my view, that the AAT is entitled to take account of the fact of conviction, which is to say: the acceptance of the record and the plea upon which it was based, together with such facts and circumstances as are necessary to provide an understanding of the offence, so far as they are relevant to the question before the AAT, which involves the purpose for which a person is said to be fit and proper.[24]
(Emphasis added)
[23]The provisions of subsection (1) do not apply where an assessment is to be made of an offender with a view to a court, or the Queensland Parole Board or a regional parole board constituted under the Corrective Services Act 2007 (Qld), making an appropriate order in relation to the person.
[24]Hartwig v PE Hack [2007] FCA 1039, 3-4. This decision was followed in Fulton v Chief of the Defence Force [2023] FCAFC 134; (2023) 300 FCR 623.
It can be seen from her Honour’s analysis that her observations about the construction of section 12(3) was in the context of the structure and context of the Crimes Act.
That structure and content of the Crimes Act was such that there was:
(a)a subsection within a provision entitled “pardons for persons wrongly convicted” under a division called “Pardons for persons wrongly convicted, and quashed convictions”, in relation to Commonwealth pardons for wrongful convictions which provided that the person was taken never to have been convicted of the offence (section 85ZR(1)); and
(b)the next subsection within that same provision which provided for the same result, that is, that a person is taken never to have been convicted, if the State law or a foreign law provides that a person is taken never to have been convicted; and
(c)A separate part of the Crimes Act which deals with spent convictions and what flows from that.
(d)No provision which was the equivalent of section 12 of the PSA. That is, there was no provision which permitted a sentencing judge, in respect of whom there had been a conviction, to not record a conviction. Rather, what the Crimes Act contained then (and now) was a provision which permitted the court to discharge an offender without proceeding to conviction.[25]
[25]In this respect, section 19B Crimes Act is similar to the provision discussed in Cobiac v Liddy (1969) 119 CLR 257, 269. That case considered section 4(1) of the Offenders Probation and Parole Act (SA) which expressly authorised dismissal of the information or complaint without conviction of the person charged. The distinction between that type of provision and section 12 of the PSA was discussed in R v Gallaher ex parte Attorney-General (1999) 1 Qd R 200, 203 by McPherson JA.

It is thus unsurprising that Kiefel J found that section 12 of the PSA was not a direct correlate with the type of provision in contemplation by section 85ZR(2). The type of provision contemplated by section 85ZR(2), as construed by her Honour, was: “a state legislation provision, which removes or disregards the conviction altogether”.[26] As described by the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton:[27]
… Kiefel J held that s 85ZR(2) involved, relevantly, State legislation “which deems a person never to have been convicted of an offence” and that the “effect of the provision must be such as to take away the fact of the conviction, as a pardon might do”[28]
[26]Hartwig v PE Hack [2007] FCA 1039, [11]. Our emphasis added.
[27][2023] HCA 17; (2023) 276 CLR 136, [24].
[28]Citing Hartwig v PE Hack [2007] FCA 1039 at [8]. Emphasis in original.
Section 12 of the PSA is not a provision which removes or disregards the conviction “altogether” or takes away the fact of conviction as a pardon might do. Section 12 expressly states that the conviction:
(a)can be entered into the records of the court in which it was made;
(b)can be entered into the criminal history for the purpose of later criminal proceedings;[29] and
(c)does not stop a court from making any other order that it may make under the PSA or another Act because of the conviction.[30]
[29]We note that section 12(5) provides that a court sentencing an offender has a discretion to disregard the conviction ordered not to be recorded. By necessarily implication, the Court may have regard to the conviction.
[30]Section 12(4)(a). Some examples of such orders are community service orders (Part 5, Division 2, probation orders (Part 5, Division 1), and fines (Part 4, Division 2).
By way of contrast, we note that section 184 of the Youth Justice Act 1992 is a provision to which section 85ZR applies. In Thornton, Gageler and Jagot JJ stated that the differences between this scheme in the PSA and that of the Youth Justice Act are clear:
The Youth Justice Act does not define "conviction" as "a finding of guilt, or the acceptance of a plea of guilty, by a court". Like all words, the meaning of "conviction" will depend on its context, but it is apparent that the Penalties and Sentences Act and the Youth Justice Act assume that it ordinarily includes the making of a court order recording the conviction. This is why s 12(4) of the Penalties and Sentences Act additionally provides that a conviction without the recording of a conviction, by para (a), "does not stop a court from making any other order that it may make under this or another Act because of the conviction" and, by para (b), "has the same result as if a conviction had been recorded for the purposes of", amongst other things, "appeals against sentence" and "proceedings against the offender for a subsequent offence", as well as "subsequent proceedings against the offender for the same offence". The expansive definition of "conviction" in the Penalties and Sentences Act also enables s 12(6) of that Act to be framed as an apparent oxymoron in referring to a court which both "convicts an offender of an offence" and "does not record a conviction". In other words, under the Penalties and Sentences Act, a person is in fact "convicted" by a finding or admission of guilt even if no conviction is recorded.
The scheme of the Penalties and Sentences Act bears no resemblance to that under the Youth Justice Act. While s 184(2) is within Pt 7, concerning sentencing, s 183(1) directs that a conviction is not to be recorded against a child who is found guilty of an offence other than under that section, and s 184(2) does not refer to "a conviction without recording the conviction" (in contrast to s 12(3) of the Penalties and Sentences Act). Section 184(2) relevantly provides that "a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose". Section 175(1) also operates on a finding of guilt, and not the recording of a conviction. Moreover, under the Youth Justice Act, unlike an adult found guilty in accordance with the Penalties and Sentences Act, a child is not convicted by a finding or admission of guilt if no conviction is recorded.
Section 148 of the Youth Justice Act is not inconsistent with this conclusion. The prohibition on the admission of evidence against an adult of a finding of guilt and without the recording of a conviction against them as a child ensures that a person who committed offences as a child has permanent protection against any use of that against them as an adult. Otherwise, s 12(3)(b)(ii) of the Penalties and Sentences Act would operate, for example, to enable, by operation of s 12(4)(b)(iii), the finding of guilt to be used in "proceedings against the offender for a subsequent offence". Such a use, and indeed any such use of a finding of guilt against a child in proceedings against them as an adult, as would otherwise be authorised under s 12(4)(b) by s 12(3)(b)(ii) of the Penalties and Sentences Act, would be inconsistent with the scheme of the Youth Justice Act. Accordingly, s 148 of the Youth Justice Act in fact supports the conclusion that a finding of guilt under the Youth Justice Act, without any conviction being recorded, is not a conviction. In this context, s 184(2) ensures that a child offender found guilty, but not the subject of the recording of a conviction, has never been convicted at all.
Nor does s 154 of the Youth Justice Act assist the Minister's case. Section 154 ensures only that a finding of guilt against a child may be used in subsequently sentencing that child for any offence as a child. It is thus a provision complementing s 148. The policy intent is clear. Findings of guilt of a child should be able to be used against the child for further offences they commit as a child. Otherwise, the court could not adequately perform its functions under s 175 of the Youth Justice Act. But, under the Youth Justice Act, a finding of guilt of a child is not a conviction and is not taken to be a conviction for any purpose.
Further, the provisions of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), and the definitions of "conviction" and "rehabilitation period" in that Act, do not suggest to the contrary. Rather, they reinforce that the Criminal Law (Rehabilitation of Offenders) Act applies only to a child "in relation to a conviction recorded against" the child as a child. Section 5(2), which contemplates that a person may have a "conviction" which has not been recorded, reflects only the general application of that Act, including to adults convicted in accordance with the Penalties and Sentences Act without any conviction being recorded.
Section 9A of the Criminal Law (Rehabilitation of Offenders) Act is immaterial. Section 9A applies to an applicant for a position specified in that section (including, for example, a police officer, justice of the peace, or teacher). If requested or required, the applicant is required to disclose, by s 9A(1)(a), the person's criminal history concerning specified offences and, by s 9A(1)(b), convictions recorded against the person in respect of specified offences, being "convictions that pursuant to any law are to be deemed not to be convictions". The definition of a person's "criminal history" is confined to "the convictions recorded against that person", so s 9A(1)(a) does not apply to a person found guilty of an offence as a child where no conviction was recorded. Section 9A(1)(b) does not apply to a person found guilty of an offence as a child where no conviction was recorded because the finding of guilt is not a "conviction deemed not to be a conviction". It is a finding of guilt deemed not to be a conviction. The two are different.
The other submissions for the Minister do not accept the significance of the fact that the scheme of the Youth Justice Act ensures that a finding of guilt is not, and is not taken to be, a conviction for any purpose. While s 85ZM(1) of the Crimes Act, as a Commonwealth law, prevails so that the finding of guilt is taken to be a conviction for the purpose of Pt VIIC of that Act, s 85ZR(2)(b) operates on s 184(2) of the Youth Justice Act so that the person shall be taken, (relevantly) in Queensland, by any Commonwealth authority in that State never to have been convicted of that offence for any purpose. The geographical locators in the provision may be clunky, but they are clear enough. Mr Thornton's offences as a child were committed in Queensland. Mr Thornton, in Queensland, is to be taken by the Minister in that State (notionally for the purpose of considering Mr Thornton's revocation application) never to have been convicted of any such offence for any purpose. Section 85ZM(1) of the Crimes Act does not operate for any purpose other than Pt VIIC of that Act. It does not operate, for example, to rewrite the provisions of the Youth Justice Act to transform a finding of guilt into a conviction under and for the purposes of the Youth Justice Act or any other Queensland legislation.[31]
….. Each provision of State or foreign law will turn on its own terms.[32]
(Citations removed, bold added)
[31][27]-[33].
[32]On this point, see also Gordon and Edelman JJ at [81].

Conclusion

The finding in Hartwig v PE Hack does not govern the position here.[33] Its conclusion that the administrative decision-maker was entitled to take account the fact of conviction, that is, the acceptance of the record and the plea upon which it was based, together with such facts and circumstances as are necessary to provide an understanding of the offence, so far as they are relevant to the question before the AAT, which involves the purpose for which a person is said to be fit and proper, reflects the finding by her Honour that section 12(3) is not a provision to which section 85ZR of the Crimes Act applies. It is not a finding that State administrative decision makers, applying State administrative decision provisions, can take into account a conviction in respect of which a conviction was not recorded, and/or the facts and circumstances necessary to provide an understanding of the offence. Whether an administrative decision maker can do that will depend on what the State law says, and its interplay with section 12(3) of the PSA.
[33]As such, we find ourselves in respectful disagreement with the learned member in GKR v Queensland Police Service – Weapons Licensing [2023] QCAT 335.
We turn now to a consideration of that issue.

Submission of the QPS

In the course of submissions, the QPS confirmed that the sole reason for it maintaining the position that XPR is not a fit and proper person to hold a licence was the 2021 drug offences.
The QPS informed QCAT that they would generally like to see a period of time with no offending, so that there is “surety that the behaviour won’t be repeated again”.
At the time of the oral hearing of the matter before QCAT, it had been two years since the offence.
The QPS observed that the statute provides a 3-year exclusion period for someone to reapply if they are regarded by the QPS as not a fit and proper person, and that were he to reapply at three years with no reoffending, it would go a long way towards supporting the conclusion that he is a fit and proper person. No further submission was placed before QCAT by the QPS as to what, in this case, would lead to the conclusion that he was not, by the time of the hearing, a fit and proper person.
The QPS submit that section 10B(1) provides no express limitations on the information to which an authorised officer can have regard.
So much can be accepted: section 10B(1) does not contain such an express limitation. It requires that the authorised officer must consider the matters enumerated, but it also permits consideration of “other things”. However, the absence of an express limitation does not mean that the matters which can be considered are unlimited or are not constrained by the effect of other legislation.
The QPS submit that given the underlying provisions of the WA as set out in section 3, and that the objects of the WA are to be achieved by providing strict requirements that must be satisfied for a licence to possess firearms as set out in section 4(3), including being a fit and proper purpose, the WA is protective legislation. To that end, the QPS submit the legislature has conferred broad powers on authorised officers to assess applications in respect of weapons licences, and that an interpretation which permits authorised officers to have regard to past offending, whether or not a conviction has been recorded, should be applied.
The QPS submit that although section 12 of the PSA restricts the application of section 10B(2)(a) of the WA to matters in respect of which convictions have been recorded, section 12 of the PSA does not apply to subsection 10B(1) as that subsection makes no reference at all to “convictions”, recorded or otherwise. The QPS submit that the WA provides for the scope of the application of section 12 of the PSA; the scope extends no further than section 10B(2)(a).
We do not accept that submission. For reasons which we set out further below, for section 12(3) to prevent not-recorded convictions from being taken into account, it is not necessary that the relevant provision contain the word “conviction” or “convicted”. We are therefore in respectful disagreement with the decision in Lane v Queensland Police Service Weapons Licensing.[34]
[34][2024] QCAT 145, [25]. This was a decision in which the learned Member accepted the submissions of the QPS that the approach taken in Grobler of extending the operation of section 12(3)(a) of the PSA beyond section 10B(2)(a) to subsection 10B(1) should not be followed. Ultimately, the Member held that regard could be had to offences for which convictions were not recorded, but found the offences in that case irrelevant to her determination of whether the applicant was a fit and proper person to have a licence.
The QPS further submit that the authorised officer can take into account any information to which they have access, including for example, the facts and circumstances of offending and, indeed, any charges that may have arisen as a result. Section 10B(1)(d) of the WA was relied upon expressly for this proposition.
As noted earlier, no evidence was placed before the Tribunal as to whether the checks which had been done by the QPS revealing the offences were carried out by a person who had authorisation, statutory or otherwise, to do so or that the keeping of the records for the purpose of weapons licensing decisions and conducting checks for that purpose were necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative.
We acknowledge that it will be necessary for the QPS to input the results of matters which they investigated and prosecuted for the legitimate purpose of its crime investigation and prosecuting functions into records. We are not prepared to assume, though, in the absence of evidence and argument, that the mere fact that someone at the QPS accessed the records of the offending and court result means that they were, in fact, entitled to do so or that such records are “necessary for the legitimate performance of the functions of” the weapons licensing branch of the QPS.
We do not accept the submission, therefore, that the fact the authorised officer accessed the records means that the authorised officer, or this Tribunal on review, is entitled to have regard to the facts, circumstances and charges disclosed in those records.

What is the correct approach to section 12(3) of the PSA vis-a-vis section 10B of the WA?

We agree with the approach taken by the learned Member in Grobler that the finding or plea of guilty and the facts and circumstances of an offence in respect of which a court exercised its discretion not to record a conviction can not be taken into account in applying section 10B of the WA.
We agree with the reasoning behind that decision.
In Grobler, in respect of sentencing judges and Magistrates considering the exercise of section 12 of the PSA, the learned Member stated that:
The task set Judges and Magistrates is to determine the appropriate balance between on the one hand, giving an offender the benefit of not recording a conviction, and on the other protection of the public in such matters as the licensing regimes. If licensing boards (including Weapons Licensing) were able to go behind the balance determined appropriate by a Judge or Magistrate in sentencing, it would set to nought their careful consideration of what is appropriate in the circumstances under the protective umbrella of s 2(3) of the Penalties and Sentences Act.[35]
[35]Grobler v Queensland Police Service [2023] QCAT 103, [30].
We agree with this observation. The Tribunal in Grobler then went on to say that:
None of the authorities which raise the important issue of the tension between the interests of an offender and the right of people who may have future contact or dealings with the offender,[36] suggest that the circumstances of offences leading up to an unrecorded conviction is something separate from the conviction itself and may be relied on to avoid the broad intended effect of s 12(3).
None of the authorities suggest that an unrecorded conviction does not remove the offence concerned from the protective attention of licensing authorities who would otherwise be appropriately involved in assessing the offending behaviour, either on the basis the offender is not a person who is fit and proper to hold a license or on the basis of the public interest.[37]
[36]Citing R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467, [76].
[37][31]-[32].
With respect, we agree. The approach taken by the tribunal in Grobler is consistent with the observations made in Briese by the Court of Appeal that the obvious effect of a non-recording of a conviction order:
[I]s capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers and various government departments…. For present purposes it is enough to note that the making of an order under s 12 has considerable ramifications of a public nature, and courts need to be aware of this potential effect. In essence, a provision of this kind gives an offender a right to conceal the truth, and it might be said, to lie about what has happened in a criminal court.
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression.[38]
[38]R v Briese; ex parte Attorney-General [1997] QCA 10; [1998] 1 Qd R 487, 491.
It is clear that the PSA establishes a legislative regime which is intended to protect an individual from the stigma attached to a conviction in respect of which a sentencing judge or magistrate decided no conviction should be recorded. It would be a curious result indeed if parliament intended that no record of a conviction is to be maintained (other than for sentencing and appeal purposes) but a licensing authority that happens to know about it is free to draw upon its own records regarding the facts of the conviction and the facts and circumstances leading to the conviction.

Rather, what parliament has done is to create a prohibition on the recording of non-recorded convictions, apart from specific carve outs (that is, the courts record, later criminal proceedings and for the legitimate performance of the functions of the department, prosecuting authority or legal representative). If parliament intended for there to be further exceptions, it could have created further exceptions, either in the PSA or in the legislation being applied.[39] It has not done so.
[39]See, by analogy, the observations made by McGill SC DCJ in Dawson v Tanwan, unreported decision of the District Court, 10 December 1999, at page 12, paragraph 2, and at page 14 (final sentence) to page 15, paragraph 1.
We do not consider that the reference in section 10B to being able to take into account “other things” is sufficient to operate as a further exception to the operation of section 12(3). It does not do so expressly, and it does not do so by necessary implication. To hold otherwise would be to impermissibly traverse the prohibition which flows from section 12(3) of the PSA.[40] In this regard, we agree with the observations made in Grobler v Queensland Police Service.[41]
[40]See, by analogy, the observations made in Grobler with respect to the criminal intelligence provision: Grobler v Queensland Police Service [2023] QCAT 103, at [37]-[39] (referred to above at paragraph 16).
[41][2023] QCAT 103, at [37]-[39], extracted at footnote 9 above.
We therefore conclude that when applying section 10B, regard can not be had to convictions for offences for which no conviction has been recorded, or the facts and circumstances of those offences.

The Criminal Law (Rehabilitation of Offenders) Act (“CLROA”)

Our conclusion in the previous paragraph is sufficient to dispose of the legal question in issue.
However, for the sake of completeness, we note that the provisions of the CLROA support our conclusion.
Section 5(2) of the CLROA provides that “[a] person shall not be required or asked to disclose and, if so required or asked, shall not be obliged to disclose for any purpose a conviction that is not part of the person’s criminal history or of the criminal history of another person or a charge made against the person or another person”.
Section 3 of the CLROA defines “conviction” as “a conviction by or before any court for an offence, whether recorded, in Queensland or elsewhere, before or after the date of commencement of this Act”.
Section 3 of the CLROA defines “criminal history” as meaning “the convictions recorded against that person in respect of offences”.
The effect, therefore, of section 5(2) and the definition of conviction and criminal history in section 3, is that a person shall not be required or asked to disclose and, if so required or asked, shall not be obliged to disclose, for any purpose, a conviction that is not recorded. This provision therefore provides further protection for the rehabilitative intent behind section 12(3) of the PSA. It is subject to express prohibitions in respect of which the parliament considered it appropriate.[42] WA licensing is not one of them.
[42]Section 9A, CLROA.
We note also that if non-recorded convictions were able to be taken into account, an illogical dichotomy may be created by the operation of section 9(1) CLROA. Section 9(1) operates in respect of spent convictions. It relevantly provides:
… any person or authority charged with the function of assessing a person’s fitness to be admitted to a profession, occupation or calling or for any other purpose shall disregard any conviction that is part of the person’s criminal history in relation to which the rehabilitation period has expired and which has not been revived in respect of the person unless –
(a) The person to be assessed is expressly required by law to make disclosure of his or her criminal history; or
(b) The person or authority making the assessment is expressly required by law to have regard to the criminal history of the person to be assessed; or
(c) The person to be assessed is, by reason of section 4, not relieved from responsibility to disclose his or her criminal history.
(Emphasis added)
Section 9(1) prohibits a person or authority charged with the function of assessing a person’s fitness for any purpose from having regard to a spent conviction, subject to the stated exceptions. The CLROA defines a person’s criminal history as the convictions which were recorded against the person; a not-recorded conviction would not be captured by section 9(1), and would, if the QPS submission were accepted, be able to be taken into account even if it were as old as a spent conviction. This would be an illogical inconsistency if it were the case. It would be inconsistent with parliament’s obvious intent, in the legislative schemes provided in the PSA and the CLROA, to provide protective rehabilitative mechanisms. The more obvious, and we find, correct conclusion is that there was no need for section 9(1) to cover all convictions, whether or not in the criminal history, because section 12(3) already does the work.
Finally on the issue of the CLROA, we note that the non-disclosure provision in section 5 is subject to section 5(3) which provides that section 5(2) does not apply where the requirement or request to disclose a conviction or charge therein referred to is made for the purposes of any inquiry being conducted pursuant to authority conferred by or under an Act or in criminal or civil proceedings before a court if the fact of the conviction or charge is relevant to an issue in the proceedings or the court has granted permission for the requisition or request to be made. The QPS has not relied upon this provision in advancing their argument. We do not suggest that they should have.

The evidence on review

XPR placed the following evidence before QCAT on the review:
(a)He pleaded guilty to the charges of production and possession of a cannabis plant in December 2021. He was fined $700 and no conviction was recorded.
(b)He has no other criminal history. There is no domestic violence order against him. He has never exhibited any violent tendences. He firmly believes in peaceful resolution of issues.
(c)At the time he committed the offence, he had been suffering from back pain, and in an attempt to deal with severe discomfort, he tried to grow a cannabis plant. He had injured his back at the gym, and it was causing him trouble, particularly given that he was a refrigeration mechanic and had to do a fair bit of lifting. His housemate at the time had suggested that it would be a good idea to grow his own cannabis and medicate with that, rather than going to get a script. XPR thought the problem was temporary. The small plant died before it was discovered by police. He had no intention of supplying cannabis to another. He ended up going to see a physiotherapist, who gave him exercises, which he did, and over three or four months, his back got better.
(d)The reason he wants a firearms licence is because he and other family members participate in long range target shooting clubs and competitions. He wishes to be part of these experiences. Having a licence would also enable him to join his friends on hunting trips, specifically targeting pest species on rural properties.
(e)He is working at a mine site. At work, he is required to uphold strict safety standards and protocols. He is committed to safety at the mine. He is subject to random drug tests. He is committed to maintaining a drug free environment and he says that this reflects his dedication to personal and professional integrity.
(f)He said that his mental wellbeing and overall health are in excellent condition: he is mentally sound and physically fit which he regards as essential factors for making sound judgments and maintaining control in various situations.
(g)He gave evidence that “I believe myself to be a fit and proper person and a good law-abiding citizen….It’s just keeping …everything safe, which is a big thing with having a gun. Working in a mine is definitely helping me with safety and opening my eyes to the massive safety aspect around everything in life, really. So that will definitely transfer over if I were to get a gun licence and acquire a gun”.
He also placed two character references before QCAT from work supervisors who, at the time of writing the references, had known him for over a year. They describe him as mature, showing discipline and adherence to ethical conduct, demonstrating excellent judgment and a strong sense of responsibility, both personally and professionally. They spoke of his integrity, honesty, respect for others, exceptional communication skills, and his calm and composed nature. One of the references confirms that the mine site has a strict drug-free policy, and XPR has been subject to regular drug tests and that he has always complied with the tests. Employment intake information placed before QCAT by XPR confirms these policies, and his medical assessment of 20 May 2022 discloses a negative drug test.

Conclusion and orders

We are satisfied that XPR has met all of the requirements of section 10(a) of the WA, including that he is a fit and proper person.
The decision of the authorised officer is set aside. XPR’s application for a weapons licence is granted.

Non-publication

The Tribunal, under section 66(1) of the QCAT Act, may make a non-publication order. It may do so on the application of the party or on its own initiative.[43]
[43]Section 66(3), QCAT Act.
Given section 12(3) of the PSA prohibits the entering of the convictions in records, and that no exception to that requirement has been shown, we are of the view that it is appropriate to make a non-publication order of any material which may identify XPR. We order that the publication of any material which may identify XPR is prohibited.