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

Weapons Regulation 2016 (Qld), Part 26, s 148

Weapons Categories Regulation 1997 (Qld), s 8(1)(h)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24

Stower v Smart [2007] QDC 4

P Kuskie, solicitor of Rostron Carlyle Rojas Solicitors

Acting Sergeant R P Landim, Queensland Police Service Weapons Licensing Branch

[1] The Applicant, now 48 years of age, is a farmer in the Jondaryan District, and operates the property known as 'Vatua'. Vatua is some 900 hectares of dry land grain and cotton. Farming operations thereon are conducted under the trading name 'Ryder Brothers'.

[2] Like many farmers, the Applicant has an occupational need for weapons to deal with invasive species, including European red foxes, feral pigs, wild dogs, and feral cats.

[3] For many years, the Applicant has been the holder of licences under the Weapons Act 1990 (Qld) ('the Act') and is currently the holder of licenses for Category A, Category B, and Category C weapons. The Applicant has no criminal history. The Applicant has an unremarkable traffic history. The Respondent confirms that, in all respects, the Applicant is (and has always been) a 'fit and proper' person for the purposes of the Act. Evidence brought before the Tribunal as part of this Application for review also reveal the Applicant to have a very strong commitment to the adoption of best practice in agriculture, particularly insofar as it relates to workplace health and safety.

[4] Other evidence put before the Tribunal shows the Applicant to have already sustained a significant degree of hearing loss in his left ear. A report from an audiologist states this hearing loss is consistent with the Applicant having been exposed to occupational noise exposure, and right-handed rifle shooting. Needless to say the Applicant is right-handed, and holds a rifle to his right shoulder.

[5] The Tribunal is informed that any noise exposure above 140 decibels causes permanent hearing damage. Sound levels when firing most firearms range from 140 decibels, up to above 170 decibels. In simple terms, even very intermittent use of firearms is attended by a very real risk of permanent hearing damage.

[6] Even more harmful to hearing than is the noise component of the report of a gun is the accompanying explosive blast (or 'impulse'). This is reputed to generate up to 1,000 times more pressure than does the noise component of the gun's report. Personal Protective Equipment ('PPE') in the form of either earplugs, or earmuffs, whether used alone or in combination, may reduce noise exposure by approximately 20 - 30 decibels. Yet, for the majority of long-arm weapons, PPE of that type is insufficient to attenuate noise below dangerous levels.

[7] On the other hand, a sound moderator or suppressor[1] - muzzle-fitted devices now referred to in section 8(1)(h) of the Weapons Categories Regulation 1997 (Qld) as 'silencers' - are able to achieve superior noise attenuation, routinely reducing the effects of muzzle blast down to somewhere just below 120 decibels. Whilst still louder than a jackhammer,[2] this is a noise level that is regarded as safe, at least for a few seconds of daily exposure. Even greater levels of hearing protection may then be achieved if ear-level PPE is used in conjunction with muzzle-fitted noise suppression. If the evidence adduced in these proceedings before the Tribunal is accepted, it would seem that any shooter who is truly intent on protecting their own hearing would always choose, if the law would let them, to use both PPE and a muzzle-fitted suppressor.

[8] Pursuant to section 8(1)(h) of the Weapons Categories Regulation 1997 (Qld), silencers or 'other devices or contrivances made, or used, or capable of being used, or intended to be used, for reducing the sound caused by discharging a firearm' fall within weapon Category 'R'. This is the really serious category, and all of these are forbidden. Other weapons in Category R include (for example), machine guns, grenade launchers, guns capable of firing 50 calibre munitions, mortars, and bazookas.

[9] Category R weapons may only be possessed by the holder of a collector's licence,[3] or a dealer's license,[4] and then so only on proviso that these weapons have first been rendered inoperable. In defined circumstances, a licensed armourer might also handle Category R weapons.[5]

[10] The only other basis upon which to obtain lawful access to a Category R weapon is to first obtain an exemption from the police commissioner, issued under Part 26 of the Weapons Regulation 2016 (Qld). Thus, should a person wish to use a muzzle-fitted suppressor lawfully, it becomes necessary to successfully obtain an exemption from Category R.

[11] On 23 January 2018, the Applicant applied to the Queensland Police Service Weapons Licensing Branch for an exemption, that would entitle him to have a licensed gunsmith permanently affix a suppressor to the muzzle of the rifle most often used to control invasive species at Vatua.

[12] On 19 February 2018, Acting Inspector Lingwood (who is an authorised officer for purposes of the Weapons Act), refused the application for an exemption. The Information Notice accompanying Inspector Lingwood's refusal letter sets out the reasons. It is worthwhile to now set these out, in full:

Under s.2(1)(m) of the Weapons Act 1990 (Qld) ('the Act') I am authorised by the commissioner to grant an exemption from the application of the provisions of the Act. Section 144 of the Weapons Regulations 2016 (Qld) ('the Reg') prescribes the way the commissioner can grant an exemption.

Section 148(3) of the Reg provides that if the commissioner decides to refuse the application for exemption the commissioner must give written notice to the applicant refusing the application and providing the reason for refusal.

In making the decision to refuse your application for exemption from the Weapons Act provisions in relation to sound moderators I have considered the principles and objectives of the Act outweigh the need to use a sound moderator.

I have taken into consideration your application and the following in reaching my determination.

Section 3 Principles and objects of the Act. Section 3(1)(a) makes it clear that weapon possession and use are subordinate to the need to ensure public and individual safety.

Further, s.3(1)(b) explains to achieve this public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secures storage and carriage of weapons.

Section 4 of the Act provides how the object is to be achieved for firearms included s4(d) providing strict requirements that must be satisfied for (i) licences authorising possession of firearms; and (ii) the acquisition and sale of firearms;....

Part 4 of the Act outlines how a weapon must be possessed and used including the requirement that a person must be licensed to possess a weapon for any lawful purpose.

The Act provided that holders of a Collectors licence can, in certain circumstances, possess a Category R weapon if the weapons are made permanently inoperable or are inert (s.77 the Act).

A dealer under their licence can broker the acquisition of category R weapons under certain circumstances in relation to the holder of a theatrical ordnance supplier licence holder or a permanently inoperable category R weapon to the holder of a collectors licence (s.54 the Reg).

Legislators have specially legislated in the Reg, particular under Part 8 the categories of weapons that a firearms licence holder can possess. The Act and Regs specifically do not provide for a holder of a firearms licence to be licenced for a category R weapon.

Section 22(1) of the Regs provides concealable firearms licence authorises the licensee to possess and use any pistol, which is not a category R weapon, for the purpose stated on the licence.

The Weapons Categories Regulation 1997 (QLD), s.8 provides what Category R weapons are. Section 8(1)(h) provides that a silencer or other device or contrivance made or used, or capable of being used or intended to be used, for reducing the sound caused by discharging a firearm.

Legislation does not provide for a holder of a firearms licence to be licenced for a category R weapon. Further, legislators have considered and stipulated in s.22(1) that a concealable firearms licence authorises a licensee to possess any pistol that is not a category R weapon.

As a decision maker it would be in conflict with the law and ultra vires to issue the requested exemption.

There is potential for pistol ranges to modify ranges to decrease noise emission through structural and range practices to reduce exposure of noise for participants other than using sound moderators.

[13] Pursuant to section 142(1)(a) of the Weapons Act, a person who is aggrieved by 'a decision refusing an application for a licence, permit, approval or other authority under this Act' may apply to QCAT, for a review of the decision. It seems sufficiently clear that the refusal to grant an exemption pursuant to s.2(1)(m) of the Weapons Act falls within the expression 'approval or other authority under this Act', such that the Tribunal does have jurisdiction to determine this Application for review, arising as it does in circumstances wherein an exemption has been refused.

[14] Pursuant to s.19 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'), the Tribunal must decide the review in accordance with the QCAT Act and the 'enabling Act' under which the decision being reviewed was made. In this instance the enabling Act is the Weapons Act, together with the Weapons Regulation 2016 (Qld), and the Weapons Categories Regulation 1997 (Qld).

[15] The Tribunal may perform the functions conferred on it by the QCAT Act, and the enabling Act, and now has all of the functions of the original decision-maker for the decision under review. The purpose of the review is specified in the QCAT Act as being to produce the 'correct and preferable' decision, after conducting a fresh hearing, on the merits.[6]

[16] Here summarising, the Applicant adduced the following documentary evidence before the Tribunal as part of the fresh hearing required by the QCAT Act:

(a) An audiology assessment undertaken on the Applicant's hearing on 9 July 2015. This reveals him to have already sustained hearing loss 'consistent with significant noise exposure and right-handed rifle shooting';

(b) Excerpts from the Work Health and Safety Act 2011 (Qld). Section 19(1) mandates that a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the person, and workers whose activities in carrying out work are influenced or directed by the person. Section 19(5) mandates that a self-employed person has equivalent duties, in respect their own health and safety.

(c) Excerpts from the Biosecurity Act 2014 (Qld). Section 23(2) therein specifies that a person has a 'general biosecurity obligation' to take all reasonable and practical measures to prevent or minimise 'biosecurity risks'. Examples of biosecurity risk given in section 23 include the need to manage the impact of invasive animals on a person's land.

(d) A 2017 Position Paper, entitled 'Position Paper in Favour of Firearm Suppressors to Prevent Hearing Loss', authored by Doctors for Responsible Gun Ownership.[7] The authors make the point that firearm use is accompanied by substantial noise exposure with serious long-term consequences in terms of the risk of hearing loss; and that traditional personal protective equipment ('PPE') is not sufficient to attenuate noise to safe levels. Whereas, 'modern muzzle-level suppression is vastly superior to ear-level protection and the only available form of suppression capable of making certain sporting arms safe for hearing'.

(e) An article from the Western Criminology Review (2007), entitled 'Criminal Use of Firearm Silencers'.[8] The author (Clark) notes that as at 2007 the legislative assumption made in many jurisdictions that silenced firearms are more criminally dangerous than are ordinary firearms had never been empirically tested. After conducting a review of criminal prosecutions in the US between 2000 and 2005 for offences involving the use of firearms, Clark concludes that the use of suppressors in crime is exceedingly rare. That a good suppressor can only marginally reduce the noise of a weapon, and that these also make weapons much more difficult to conceal are then postulated by Clark as the primary reasons why suppressors do not appear to be attractive to criminals.

(f) An article from the International Journal of Audiology.[9] That article concludes that muzzle suppressors afford substantial risk reduction, yet 'double protection' for hearing, by means of the simultaneous use of PPE is still warranted.

(g) A 2011 research paper entitled 'An Investigation into the Use of Sound Moderators on Firearms for Game and Feral Management in New South Wales'.[10] This was a literature review commissioned by the Game Council of New South Wales. The authors concluded that:

(i) There is no evidence of any link between sound moderators[11] and their use in either petty crime, or organised criminal activity.

(ii) A sound moderator is an inert device, itself incapable of causing injury.

(iii) Moderators afford far superior noise attenuation to traditional PPE.

(iv) There are additional benefits from moderator use in game and feral management. These include: increased shot accuracy; reduced perceived recoil; reduced stock disturbance; facilitation of more efficient animal husbandry; and better animal welfare outcomes, in terms of more humane culling.

(v) Some comparable jurisdictions (including New Zealand), impose no legal restrictions on the use of moderators. In those places their use has become common in game and feral management.

(h) A blank copy of a New South Wales Police Force form entitled Firearms Registry Prohibited Weapon Silencer Permit - Genuine Reasons. I am informed that the purpose for the inclusion of this document as part of the Applicant's supporting evidence is to show that some other Australian states have already moved to a more "forward-leaning" regulatory regime, that recognises that there may be genuine reasons for gun owners to use suppressors.

[17] The Applicant also called a Health and Safety Consultant, a Mr Dave Adams from Focus Human Resources, to testify before the Tribunal. Mr Adams has provided a report, that enlarges upon many of the things that were said by him during his oral testimony. Mr Adams was an impressive and interesting witness.

[18] Mr Adams indicated that Focus Human Resources had been retained by Ryder Brothers to undertake a workplace safety audit on the whole of the farming enterprise at Vatua. It was Mr Adam's risk assessment that had particularly identified the 'extreme' risk of hearing loss from discharging firearms on Vatua as an 'identified risk', one that now needed to be properly managed, if Ryder Brothers are to discharge their obligations arising under the Work Health and Safety Act 2011 (Qld), because of the fact of it having been identified as a risk.

[19] According to the 'hierarchy of controls' for the management of identified risks, (the approach mandated by section 36 of the Work Health and Safety Regulation 2011 (Qld)), Mr Adams opines that the highest level of protection against the risk is to be achieved via an 'engineered' control, which he says would include the attachment of a suppressor to any of the weapons regularly used on Vatua as part of farming operations.

[20] None of the extrinsic evidence adduced by the Applicant in support of his Application for review, and as is now summarised in paragraphs [16]-[19] above was either contradicted, or challenged, by the Respondent. I therefore accept all of it to be relevant, in terms of now informing the correct and preferable decision on this Application for review.

[21] Mr Ryder also gave oral evidence before the Tribunal, which was consistent with his prepared statement,[12] and thereby informed the Tribunal that:

• (a) All of Vatua, bar about 40 hectares, is under crop - mostly corn and sorghum. Vatua is certified as a 'zero till' farm. As such, vehicles and machines may only be used on Vatua in defined travel lanes.
• (b) Wild pigs are highly destructive of the crops on Vatua. Other introduced species including foxes, wild dogs, and wild cats, are destructive of native fauna. There is an economic imperative to deal with the wild pigs, and a legislative requirement arising under the Biosecurity Act 2014 (Qld) to deal with all of the pest species.
• (c) It is not practically possible to hunt the pest species by means of either motorbike or quad-bike, on Vatua. The crops are planted from fence to fence, and vehicular movement across 'zero till' cropping land must, in all events, be kept to defined paths.
• (d) Mr Ryder most often sees feral species from the vantage point of the cabin of his John Deere tractor. Here, he is high above the corn, and able to see the pigs and other pests, and thus more able to take a safe and humane shot from the cabin.
• (e) Mr Ryder considers that it is not practical, nor even prudent, to alight from the cabin of the tractor to take the shot. By the time he has climbed down the ladder, the beast has inevitably gone. Vatua is black soil country. Quickly obtaining a safe stand point for shooting when at ground level can be very difficult, due to the presence of large cracks in the ground. These can be difficult to see, because of the crops. In all events, Mr Ryder raises real concerns about the risk of a loss of situational awareness. He does not wish to be down among the corn, in the presence of an angry boar.
• (f) Although 'out the door of the tractor cabin' affords a far better shot, the fact of the cabin being enclosed on three sides with glass further amplifies the noise of the report of his rifle, and the impact of any explosive impulse. PPE alone is not ever going to be enough to attenuate that risk of hearing damage.
• (g) Mr Ryder has genuinely expressed concerns about his existing hearing loss, and wishes to now do whatever he can in order to protect the remainder of his hearing. He makes the point that daily 'noise load' is an accumulative thing. Even with no shooting, ordinary daily farm activities already expose him to the maximum dose for safe background noise exposure, that being about 85 consistent decibels over an 8 hour period.

[22] Consistent with the position taken by Inspector Lingwood on 19 February 2018, Acting Sergeant Paz Landim now submits that sections 3 and 4 of the Act work together to preclude the possibility for the grant of an exemption in the case of a suppressor, by reason that these are 'silencers', as defined (and banned), by Category R.

[23] Sections 3 and 4 of the Weapon Act provide:

(1) The principles underlying this 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.

The object of this Act 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) licenses 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.

[24] It is the Tribunal now standing in the shoes of the commissioner of police for purposes of section 2(1)(m) of the Act, and for the making of a determination whether an exemption from s.8(1)(h) should now be granted to the Applicant. The correct and preferable decision is one made in light of a proper consideration of all of the evidence before the Tribunal, yet always mindful of the need to remain consistent with the evident principles and objects underpinning the Weapons Act.

[25] Although these are not appeal proceedings, and the decision of Acting Inspector Lingwood is not now subject to an appeal, an error in approach is nonetheless revealed in the Information Notice setting out the basis for his original decision, refusing an exemption from Category R.

[26] The original decision observes, correctly, that section 3 of the Act specifies that weapon possession and use are matters that are to be regarded as subordinate to the need to ensure public health and safety; and that public health and safety are matters that are deemed to be enhanced by means of strict controls over weapon use, storage, and carriage. Next, the original decision maker observes (again correctly), that Part 4 of the Act requires a person to be licensed to use weapons and notes that, other than in the case of collectors and dealers in weapons that have first been rendered inoperable, there is no ability under the regulatory scheme to become the holder of a licence for a Category R weapon. That too is true. It is an axiomatic statement of the general position. However, the error arises in having concluded that these trite observations - coupled then with a further observation that the operators of pistol ranges could implement design modifications to attenuate sound (something that is not even relevant to the present application) - afford grounds to refuse Mr Ryder's application for an exemption.

[27] It bears keeping in mind that Mr Ryder is not seeking to be licensed to hold a weapon from Category R. Indeed, for all the reasons already articulated, that would not be possible. Rather, Mr Ryder seeks to be exempted from the statutory regime. The legislature has seen fit to provide, by means of s.2(1)(m) of the Weapons Act a power to exempt a person from the usual regime applicable to weapons. This must been taken to include Category R weapons, as the Act contains no express words to the contrary. The decision now under review amounts to a failure to exercise the discretion in s.2(1)(m), similar to that recognised as having arisen in Stower v Smart.[13]

[28] It is to be observed that section 2(1)(m) of the Weapons Act identifies no specific criteria for the granting of an exemption, such that the power presents as if it were an unfettered discretion. Despite the appearance, the power in s.2(1)(m) should nonetheless be treated as constrained by the need for the exercise of it to be reasonable, in the sense that it is informed by the actual circumstances of the application for an exemption, and remain consistent with the legislative purposes of the State's weapon regulation scheme. The State weapon regulation scheme accommodates the fact that sometimes, weapons may need to be used for legitimate occupational purposes. Equally the scheme apprehends that people can legitimately use weapons recreationally. The legislative scheme seeks to strike the right balance between legitimate occupational and recreational use of weapons and the paramounts need to ensure public and individual safety. Viewed in that context, the request for an exemption to possess and use a suppressor - what would otherwise still be regarded as a prohibited 'silencer' within Weapons Category R - requires for an applicant to demonstrate some genuine reason why they need a suppressor, plus satisfaction on the part of the decision-maker regarding the suitability of any conditions that ought apply to an exemption, so as to meet the statutory requirement to ensure public and individual safety.

[29] Although I am amply satisfied that the Applicant shows a genuine reason - one based on concerns for health and safety - as to why he should be conferred with an exemption from section 8(1)(h) of the Weapons Categories Regulation 1997 (Qld), close examination of the scheme of provisions within Part 26 Division 1 of the Weapons Regulation 2016 (Qld) leads me to the conclusion that any applicable conditions need to be determined and then specified as part of the process for deciding an exemption. In this regard, to the extent here relevant, s.148 of the Weapons Regulation 2016 (Qld) provides:

148 Deciding application for commissioner's exemption and notice of grant of exemption or refusal of application

(1) The commissioner must decide each application for a commissioner's exemption.

(2) If the commissioner decides to grant the exemption, the commissioner must give the applicant a written notice -

(a) granting the exemption; and

(b) stating any conditions of the exemption.

[30] Ultimately, the question as to appropriate conditions of the exemption (if there be any need at all) may be a nuanced one, that can only be assessed on a case-by-case basis, by an approved officer with sufficient relevant subject-matter expertise. I am not that person.

[31] Accordingly, the order of the Tribunal must be one that is made under s.24(1)(c) of the QCAT Act. I therefore set aside the decision now under review, and return the matter to the commissioner of police for reconsideration, subject to the following further directions by the Tribunal:

• (a) the Applicant has established sufficient genuine need to have and use a suppressor, otherwise defined as a 'silencer' within Weapon Category 'R';

• (b) subject to the determination of appropriate conditions (if any) for purposes of s.148(2)(b) of the Weapons Regulation 2016 (Qld), grounds exist for the conferral of an exemption pursuant to s.2(1)(m) of the Weapons Act for the Applicant to possess a category R weapon; and

• (c) it is for the Commissioner of the Police Service or his delegate to determine any applicable conditions of the prospective exemption.

[32] Although ultimately a matter for the Legislature, it bears comment that the evidence heard before the Tribunal in this matter suggests that the desirability of continuing to include suppressors within Category R may be questionable, particularly in circumstances where all of the other items in that category are military-grade weapons.

[1] Throughout the remainder of these reasons the term 'suppressor' will be used, in lieu of 'silencer'.

[3] Weapons Act, s.77.

[4] Weapons Act, s.68.

[5] Weapons Act, s.69.

[7] Matthew P Branch et al, 'Position Paper in Favor of Firearm Suppressors to Prevent Hearing Loss' (Position Paper, Doctors for Responsible Gun Ownership, March 2017). This is a United States publication, and is associated with the pro-gun lobby.

[8] Paul A Clark, 'Criminal Use of Firearm Silencers' (2007) 8(2) Western Criminology Review 44-57.

[9] William J Murphy et al, 'The reduction in gunshot noise and auditory risk through the use of firearm suppressors and low-velocity ammunition' (2018) 57(1) International Journal of Audiology 28-41.

[10] Martin MacCarthy, Martin O'Neill and Helen Cripps, 'An Investigation into the Use of Sound Moderators on Firearms for Game and Feral Management in New South Wales' (Research Paper, Edith Cowan University, 2011).

[11] The authors use the term moderator, rather than suppressor.

[13] [2007] QDC 4, [22]-[24] (Skoien SJDC).