Hazelton v Queensland Police Service [2021] QCAT 125

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Weapons Act 1990 (Qld), s 3, s 4, s 10, s 10B, s 13, s 24, s 29

Weapons Regulation 2016 (Qld), s 88, s 89, s 94

Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 94 ALR 11

CAT v Queensland Police Service [2017] QCATA 43

Chivers v State of Queensland (Queensland Health) [2014] QCA 141

Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323

Cormack v Queensland Police Service - Weapons Licensing Unit [2015] QCATA 115

Cseke v Queensland Police Service (Weapons Licensing Branch) [2005] QCA 466

Geary v Queensland Police Service, Weapons Licensing Branch [2017] QCAT 6

Hammer v Queensland Police Service - Weapons Licensing [2020] QCAT 333

Harley v Department of Justice and Attorney-General [2012] QCAT 620

Harm v Queensland Police Service [2010] QCAT 518

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Laidlaw v Queensland Building Services Authority [2010] QCAT 70

Lever v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 225

Magarry v Queensland Police Service, Weapons Licensing Branch [2012] QCAT 378

McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156

O'Neill v Commissioner for State Revenue [2019] QCAT 132

Phillips v Commissioner of Police, NSW Police [2004] NSWADT 101

Phillips v Woolcock [2002] QDC 35

Ryder v Queensland Police Service Weapons Licensing [2018] QCAT 368

Salmon v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 202

Shaxson v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 309

Stower v Smart [2007] QDC 4

Walker v Queensland Building and Construction Commission [2014] QCAT 228

Sergeant D Ayscough appeared for Queensland Police Service

• [1] Twenty years ago, Geoffrey Hazelton's firearm storage facility was broken into while he was in Hong Kong. Firearms were stolen. Tragically, one of the stolen firearms was used to murder a police officer and another used for drug offences. Although Mr Hazelton said he believed his facility had complied with secure storage requirements, it did not.[1]
• [2] Mr Hazelton did not substantially upgrade or modify his storage facility. Years went by until in 2017, Mr Hazelton applied for a firearms licence and declared that his storage facility complied with the Weapons Act 1990 (Qld). A year later, the Queensland Police Service found Mr Hazelton to be in possession of 37 category A, B and C weapons not properly secured at his residence. The QPS also located either five or two unregistered firearms,[2] including a single barrel shotgun with altered serial numbers. Mr Hazelton was fined $1,000.00 on all charges from this incident, with no conviction recorded. Mr Hazelton has no other criminal history.
• [3] The QPS then revoked Mr Hazelton's firearms licence. Mr Hazelton has applied to the Tribunal to review the decision.

• [4] Mr Hazelton cited a number of Tribunal decisions[3] where applicants were successful in their applications. These decisions do not apply to Mr Hazelton's case, whose circumstances are different.

• [5] The purpose of this review is to produce the 'correct and preferable' decision.[4] The Tribunal does this by a fresh hearing on the merits.[5] This means that Mr Hazelton does not need to prove any error by QPS in its original decision - the original decision is not presumed to be correct.[6]

• [6] The Appeal Tribunal has previously adumbrated the circumstances in which a licence may be issued, and the relevant principles set out in the Weapons Act.[7]
• [7] Section 3 provides the principles and objects of the Act:

(1) The principles underlying the Act are as follows -

(a) weapon possession and use are subordinate to the need to ensure public and individual safety;

(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) The object of this Act is to prevent the misuse of weapons.

• [8] Section 4 of the Act sets out how the objects are achieved, including:

(c) requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm.

Is Mr Hazelton a 'fit and proper' person to hold a firearms licence?

• [9] Within this context, the Tribunal must be satisfied that Mr Hazelton is a 'fit and proper' person to hold a firearms licence.[8] The term 'fit and proper':[9]

...takes its meaning from the context and from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of those activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur or whether the general community will have confidence that it will not occur.

• [10] The term 'fit and proper' is not defined in the Weapons Act 1990 (Qld) but it does prescribe matters to consider.[10] This means that the Tribunal must not consider the offending behaviour in isolation but must specifically consider:[11]

(a) The object of the Weapons Act to prevent the misuse of weapons;[12]

(c) Whether the applicant has a real prospect of misusing weapons; and

(d) Whether the applicant's right to possess firearms is a real risk to public and individual safety.

• [11] The Tribunal must enquire about the applicant's character, his insight into the behaviour leading to the revocation or suspension and his conduct since.[13]

• [12] Mr Hazelton said he has always maintained the highest integrity in both his personal and professional life. He is a proud father and grandfather who supports his local community. He is a qualified flight engineer whose rural property has been a "work in progress since 1981". He was first given a rifle when nine years of age, "with strict conditions".
• [13] Mr Hazelton appears to be well regarded as shown by references attesting to his general good fame and character, albeit somewhat dated.[14] Unfortunately, none of the referees attended the hearing to give evidence in person, reducing the weight of their evidence.
• [14] Despite this, the Tribunal accepts the references show Mr Hazelton's character as:

(a) An experienced and competent flight engineer who always carried out his duties in a dedicated and conscientious manner;

(c) A thoughtful landowner with respect for the environment and others.

• [15] The evidence shows that Mr Hazelton came into possession of weapons or at least became aware of weapons on his residence that should not have been there. This shows a lack of understanding of his obligations as a weapons licence holder, and reduces the ability of police to assess the risk of misuse.
• [16] Mr Hazelton did not provide a lawful or emergent reason for possessing the unregistered firearms and failing to secure his registered firearms. Instead, he simply said that his furniture including storage was "as it was in 1988" and that he believed he was complying with the pre-2016 requirements for storage. He added that the QPS should have notified him of any change in the law. To be clear, it is not incumbent upon the QPS to keep Mr Hazelton abreast of storage requirements and his responsibilities as a gun owner. That lies solely with him.
• [17] Moreover, Mr Hazelton has not accepted responsibility for the offending behaviour nor shown insight or remorse. Instead, Mr Hazelton said that he did not see the relevance of his stolen weapons being used in criminal activity. This shows a misunderstanding of the need for secure storage and the fundamental responsibilities of gun ownership. Properly storing the firearms may have prevented the use of the guns in criminal activity. Mr Hazelton is not responsible for the actions of others. But he is responsible for his firearms.
• [18] The principles underlying the Weapons Act subordinate weapon possession to the interests of public safety and strict controls.[15] The object of the Act is to prevent the misuse of weapons.[16] Public safety requires that possession of weapons is properly regulated. The Tribunal is satisfied that the evidence shows a lack of insight into responsible weapons ownership that presents a real prospect of misusing weapons.

Is the possession of firearms a real risk to public and individual safety?

• [19] A condition of Mr Hazelton's firearms licence is that his firearms remain in secure storage. The evidence shows that Mr Hazelton has not properly stored firearms in his possession - before and since 2001. Mr Hazelton's evidence of the structure referred to as a "gun safe" in his photograph was, at times, confusing. He said it was his intention that it be the "locked room" to store his firearms, then said that it was the "secure container" within his aircraft hangar as the "locked room".
• [20] On either interpretation, Mr Hazelton did not comply with the safe storage requirements.[17] If the structure is considered a "locked room", it did not have secured gun racks or a secure container within. If the structure is itself considered the "secure container", the aircraft hangar did not have walls sufficient for a "locked room". It is not an answer to say that he believed he was following police guidelines. As a gun owner, he did not comply with the legislation and its accompanying regulations. At the very least, this indicates a lack of adequate knowledge of safety practices for the use, storage and maintenance of weapons.[18] This increases the risk of weapons being misused or stolen.
• [21] Public interest requires that Mr Hazelton should have sufficient insight as a responsible weapons-licence holder to keep weapons safely stored and not be in possession of unregistered weapons. Mr Hazelton's ongoing lack of appreciation of public safety concerns about possession of weapons is not consistent with responsible weapon ownership and presents a real risk to public and individual safety.

How does this interact with the object of the Weapons Act to prevent the misuse of weapons?

• [22] The principle underlying the Weapons Act is that weapon possession and use are subordinate to the need to ensure public and individual safety,[19] and the object of the Act is to prevent the misuse of weapons.[20]
• [23] Unfortunately for Mr Hazelton, his otherwise good character is not sufficient to displace the Act's paramount concerns. The nature and seriousness of the offending behaviour and contravention of the licence conditions, together with his lack of insight into the responsibilities and requirements of weapons ownership are sufficient to show a real risk to public and individual safety.
• [24] This means that despite Mr Hazelton's otherwise good character, he cannot be considered to be a 'fit and proper' person to hold a firearms licence.

Does Mr Hazelton have an 'occupational requirement'?

• [25] Even if Mr Hazelton is a fit and proper person to hold a firearms licence, by section 10(2) of the Act, a licence may be issued to an individual only if the person is able to satisfy specified 'limitations', including at section 10(2)(f) that the person 'has a reason mentioned in section 11 to possess the weapon or category of weapon'.[21] By section 18(9), the limitations in section 10 apply to the renewal of a licence.[22]
• [26] The claimed 'genuine reason' in the present case appears at section 11(c): 'an occupational requirement, including an occupational requirement for rural purposes'.[23] By section 18(5), in deciding the application for renewal, 'the authorised officer may consider anything at the officer's disposal'.[24]
• [27] Mr Hazelton has owned his rural property since 1981. He maintained that he operates a rural property and needs his firearms as an occupational requirement[25] to protect his stock from feral animals and 'to put down any animals that have been attacked but not killed by feral animals'.[26]
• [28] The Act does not define 'occupational requirement'. However, the applicant must prove that possession of the weapon is 'necessary' in the conduct of their business or employment.[27] The Appeal Tribunal has held that this can assist in discerning the intended meaning of the term occupational 'requirement'.[28] The case law provides these relevant principles:

(a) A distinction is drawn between use that 'is not merely a matter of convenience or preference but is a matter of necessity';[29]

(b) 'Necessary' connotes something which is required, rather than something that is merely convenient or a matter of preference;[30]

(c) Where it is evident that there are few occasions in which a gun is required and where safer alternative ways of carrying a rifle are available, a category H weapon is not 'necessary' to meet occupational requirements;[31]

(d) The use of a concealable weapon will be necessary only 'where the terrain or special circumstances make the use of a rifle or long-arm weapon impractical or impossible';[32]

(e) Whether something is an 'inherent requirement' of a particular occupation depends on whether it is an 'essential element' of that occupation, rather than a mere incident of the occupation;[33] and

(f) It is for the applicant for the licence to establish a genuine requirement and it must be an actual rather than potential requirement.[34]

• [29] Mr Hazelton must prove that he engages in 'primary production' as a business activity.[35] Mr Hazelton filed the following that he claimed proved this:

(a) An 'Agricultural Property System (APS) Property Details' dated 13 October 2011 confirming property registration details;

(c) An undated aerial image of his property and surrounding properties;

(d) Handwritten page entitled 'Major Work Days In 2016 Diary That Was Recorded' with a list of dates;

(e) Handwritten page entitled 'Major Work Days In 2017 Diary That Farm Work Was Recorded' with a list of dates;

(f) Handwritten page entitled 'Farm Plans 2016'; and

• [30] This evidence does not support a finding that the guns were necessary for Mr Hazelton to conduct a business of primary producer and the Tribunal notes:

(b) The absence of written records or accounts kept of the business such as sales invoices and receipts or an ACN and ABN substantiating the farm as his primary source of income;

(c) The absence of any investigation or planning into the efficient operation of the activities with a view to running it in a businesslike manner;

(d) The lack of continuity of the activities directed towards generating profits, as well as the lack of evidence of activities towards generating profits;

(e) The lack of evidence of natural increase or purchases of livestock; and

(f) The lack of tax returns declaring income from the activities.[36]

• [31] Moreover, Mr Hazelton did not provide evidence of plant or animal cultivation, significant animal and vermin infestation on his property, duration and frequency of attacks, or other measures he has taken to prevent attacks and their degree of success.
• [32] In review proceedings, Mr Hazelton has an evidential onus to provide appropriate material to support the decision he seeks:

Generally, there is no onus. However, practically, a party will want to adduce evidence which supports the party's case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence, the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.[37]

• [33] This has also been described as a 'practical onus'.[38] The Tribunal cannot make relevant findings without adequate proof:

In the face of poorly prepared material, the tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The tribunal cannot make findings of facts where there is no evidence... Parties must take responsibility for the preparation of their own case.[39]

• [34] Mr Hazelton has not established that he has an 'occupational requirement' for a Category C rifle and Category C shotgun. Without this, he is not entitled to be issued a weapons licence.

• [35] For the above reasons, the 'correct and preferable' decision is to confirm the decision of the Queensland Police Service - Weapons Licensing dated 23 July 2019 to revoke the firearms licence of Geoffrey John Hazelton.

[1] Weapons Regulation 2016 (Qld), s 88(1)(b), s 89, s 94(3)(a).

[2] The QPS evidence of the number of unregistered firearms was five, while Mr Hazelton's evidence was two. It is unnecessary for the purposes of this review to make a finding of fact on the number of unregistered firearms that were located.

[3] Salmon v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 202; Hammer v Queensland Police Service - Weapons Licensing [2020] QCAT 333; Ryder v Queensland Police Service Weapons Licensing [2018] QCAT 368; Harm v Queensland Police Service [2010] QCAT 518; Phillips v Woolcock [2002] QDC 35.

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

[5] Ibid s 20(2).

[6] Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8] citing with approval Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[7] McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156.

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

[9] Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 94 ALR 11, 56.

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

[11] Magarry v Queensland Police Service, Weapons Licensing Branch [2012] QCAT 378, [27] applying Stower v Smart [2007] QDC 4.

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

[13] CAT v Queensland Police Service [2017] QCATA 43, [36].

[14] Reference of JS Devlin dated 22 May 1998; Reference of Daryl Cavanagh undated; Reference of GE Lynch dated 3 July 1988.

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

[16] Ibid s 3(2).

[17] Weapons Regulation 2016 (Qld), s 88(1)(b), s 89, s 94(3)(a).

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

[19] Ibid s 3(1)(a).

[20] Ibid s 3(2).

[21] McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156, [4].

[23] The word 'genuine' appears in the heading to the section, as to which see Acts Interpretation Act 1954 (Qld), s 35C(1). For the term 'genuine reason', see also Weapons Act 1990 (Qld) s 4(c).

[24] McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156, [4].

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

[26] Mr Hazelton also enquired about an armourer's licence. However, his application for a licence was as a primary producer and no supporting evidence was adduced relating to any armoury. Accordingly, the application for review proceeded on the basis of the licence being an occupational requirement for rural purposes.

[27] Weapons Act 1990 (Qld), s 13(5).

[28] McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156, [11].

[29] Lever v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 225, [28].

[30] Shaxson v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 309, [21].

[31] Geary v Queensland Police Service, Weapons Licensing Branch [2017] QCAT 6.

[32] Geary v Queensland Police Service (Weapons Licensing Branch) [2017] QCAT 6, [40].

[33] Chivers v State of Queensland (Queensland Health) [2014] QCA 141, [42].

[34] Cseke v Queensland Police Service (Weapons Licensing Branch) [2005] QCA 466, [25]; Lever v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 225, [12].

[35] Phillips v Commissioner of Police, NSW Police [2004] NSWADT 101.

[36] O'Neill v Commissioner for State Revenue [2019] QCAT 132, [39].

[37] Walker v Queensland Building and Construction Commission [2014] QCAT 228, [23] citing with approval Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23].

[38] Cormack v Queensland Police Service - Weapons Licensing Unit [2015] QCATA 115, [33].

[39] Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323, [3].