Fowkes v Queensland Police Service Weapons Licensing

[2016] QCAT 336

CITATION: Fowkes v Queensland Police Service -  Weapons Licensing [2016] QCAT 336

PARTIES:	Paul David Fowkes (Applicant)
v
Queensland Police Service - Weapons (Respondent)

APPLICATION NUMBER: GAR172-16

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Hughes

DELIVERED ON: 20 September 2016

DELIVERED AT: Brisbane

ORDERS MADE:

It is declared that:

1. The decision to impose conditions on the exemption decision dated 15 April 2016 is a ‘reviewable decision’ under section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and section 142(d) of the Weapons Act 1990 (Qld); and

2. The Tribunal has jurisdiction to determine the application.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND RELATED MATTERS – LICENCES – ISSUE OF AND GENERALLY – whether Tribunal has jurisdiction – whether ‘reviewable decision’ under section 17 Queensland Civil and Administrative Tribunal Act 2009 (Qld) - where Queensland Police Service made decision exempting person from operation of specified provisions of Weapons Act 1990 (Qld) subject to conditions – where effect of decision was to impose conditions applying to a ‘permit’, ‘approval’ or ‘other authority’ under section 142 Weapons Act 1990 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 17, s 46
Weapons Act 1990 (Qld), s 2, s 60, s 82, s 142, Schedule 2
Weapons Regulation 1996 (Qld), s 39, s 44, s 66

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this Application about?

1. Peter Fowkes embraces the ANZAC spirit. It is a source of pride for him to display his historical gun collection each year at the Theodore ANZAC day memorial. To facilitate this, the Queensland Police Service has granted Mr Fowkes an exemption from the operations of the Weapons Act 1990 (Qld).

2. Unfortunately for Mr Fowkes, in its 2016 exemption decision the Queensland Police Service imposed conditions that differed from its 2015 exemption decision. In particular, Mr Fowkes was concerned about a condition limiting the number of weapons able to be removed from the safe storage facility and other security measures.

3. Mr Fowkes wants the Tribunal to review the decision. In particular, he wants the Queensland Police Service to issue future exemptions for historical displays without restriction, respond promptly to applications for exemption and provide a rationale for its decisions. 

4. The Tribunal must first decide whether it has jurisdiction to review the decision.[1]

   [1]        Tribunal Directions dated 19 February 2014, paragraph 2.

What is the Tribunal’s jurisdiction?

1. The Tribunal’s jurisdiction to review must be conferred by an enabling Act to review a decision made under that Act.[2] An enabling Act can include subordinate legislation.[3]

   [2]        Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17(1).

   [3]        Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 6(2)(b).

2. The enabling Act here is the Weapons Act 1990 (Qld). That Act relevantly provides that an aggrieved person may apply to the Tribunal for a review of these decisions[4]:

   (a)   Refusing an application for a licence, permit, approval or other authority under the Act;

   (aa) Refusing to renew a licence under the Act;

   (b)   Refusing to accept the nomination of a person for a shooting club permit;

   (c)   Refusing to accept a shooting club’s representative notice;

   (d)   Imposing or amending a condition applying to a licence, permit, approval or other authority under the Act; and

   (e)   Revoking a delegation to declare membership of a historical society.

   [4]        Weapons Act 1990 (Qld) s 142.

What is the ‘reviewable decision’?

1. The Queensland Police Service exempted Mr Fowkes from the application of specified provisions of the Act.[5] These provisions relate to the secure storage of weapons,[6] removing a weapon or collection register from specified premises,[7] storage of weapons[8] and the collection register[9].

   [5]        Exemption dated 19 April 2016.

   [6]        Weapons Act 1990 (Qld) s 60.

   [7]        Weapons Act 1990 (Qld) s 82.

   [8]        Weapons Regulation 1996 (Qld) s 39.

   [9]        Weapons Regulation 1996 (Qld) s 44.

2. I am satisfied that the decision to impose conditions on the exemption falls within category (d) and is therefore a ‘reviewable decision’ under the Act. The Act does not define permit,[10] approval, or other authority as used in category (d), but their ordinary meaning include ‘a legal document giving formal permission to do something’, ‘sanction’, and ‘official permission’.

   [10]        Weapons Act 1990 (Qld), Schedule 2 defines ‘permit to acquire’, but s 142 uses only

   the word ‘permit’ without later qualifying words.

3. Consistent with these meanings, the exemption decision states its purpose is ‘to permit’ the exempted person to possess and only display collectable weapons as an exhibitor for ANZAC Day 2016 celebrations, subject to specified conditions. By allowing Mr Fowkes to display weapons without the need to comply with the Act,[11] the exemption operates as a ‘permit’, ‘approval’ or ‘other authority’ under the Act. Imposing conditions on that permit, approval or other authority therefore falls within the ambit of category (d).  

   [11]        Weapons Act 1990 (Qld) s 2(m); Weapons Regulation 1996 (Qld) s 66.

4. The decision to impose conditions to the exemption is therefore a decision reviewable by the Tribunal under the Weapons Act 1990 (Qld).

5. The Tribunal does have jurisdiction to determine Mr Fowkes’ application.

What are the appropriate Orders?

1. The Queensland Police Service submitted that Mr Fowkes’ application should be dismissed because the exemption was issued for one day only on 25 April 2016 and that time has now passed. I am not prepared to dismiss the application[12] on this basis given that a decision on the merits may help to clarify the imposing of conditions for Mr Fowkes.

   [12]        Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47.

2. The appropriate Orders are:

   1. The decision to impose conditions on the exemption decision dated 15 April 2016 is a ‘reviewable decision’ under section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and section 142(d) of the Weapons Act 1990 (Qld); and

   2.    The Tribunal has jurisdiction to determine the application.