Scott v Queensland Police Service - Weapons Licensing [2021] QCAT 330

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

Weapons Act 1990 (Qld), s 3, s 4, s 10, s 11, s 18, s 142, Schedule 2

Feeney v Queensland Police Service (Weapons Licensing Branch) [2017] QCAT 203

Hazelton v Queensland Police Service [2021] QCAT 125

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

McConnel v Queensland Police Service - Weapons Licensing Branch [2019] QCAT 234

Wilson v Queensland Police Service [2010] QCAT 347

• [1] Mrs Scott raises a small number of cattle on her property for personal consumption. At the time she applied for renewal of her weapons licence she had held a licence for some time. She says she has a genuine reason for a licence, which is to euthanise her livestock, if necessary, when sick and injured, so that she can prevent cruelty and unnecessary and unreasonable pain to her animals.
• [2] Mrs Scott seeks review of the 11 July 2020 decision by the QPS to reject her application to renew her weapons licence (the Decision).[1] A person aggrieved by a decision not to renew a licence may apply to the Tribunal to review such a decision.[2]
• [3] On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration.[3] The Tribunal's function is to reach the correct and preferable decision after a fresh hearing on the merits.[4] The Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld), (QCAT Act) and the enabling Act under which the decision was made. In this case the relevant enabling Act is the Weapons Act 1990 (Qld) (the Act) and the Weapons Regulation 2016 (Qld) (the Regulations). There is no presumption that the decision under review is correct.[5]
• [4] The delay in finalising the application is regrettable and relates to resourcing issues.
• [5] Section 3 of the Act provides:

(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.

• [6] Relevantly section 4 of the Act provides:

The object of this Act is to be achieved for firearms by -

(a) .....

(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.

• [7] Section 10 of the Act relevantly provides that:

(2) A licence may be issued to an individual only if the person -

(a) is -

(i) for a licence other than a minor's licence - an adult; or

(ii) .....; and

(b) .....; 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.

• [8] Section 10(2)(a), (2)(c) to (g) applies when applying to renew a weapons licence.[6] A reference to the issue of a licence is taken to be a reference to the renewal.[7] In deciding a renewal application the authorised officer may consider anything at the officer's disposal.[8]
• [9] Essentially the question for determination is whether Mrs Scott has a reason mentioned in section 11 to possess the weapon. There is no issue that Mrs Scott is a fit and proper person to hold a licence and meets the other criteria.
• [10] Section 11 of the Act provides:

The following are reasons for possession of a weapon -

(a) sports or target shooting;

(b) recreational shooting;

(c) an occupational requirement, including an occupational requirement for rural purposes;

(d) the collection, preservation or study of weapons;

(e) another reason prescribed under a regulation.

• [11] Mrs Scott points to her obligations under the Animal Care and Protection Act 2001 (Qld) and the Animal Care and Protection Regulation 2012 (Qld) as another reason prescribed under a regulation. I find those obligations are not reasons for the purposes of section 11(e) of the Act because those obligations are not expressly stated as being prescribed for the purposes of section 11(e) of the Act.
• [12] In contrast, section 7 of the Regulations expressly provides that for the purposes of section 11(e) of the Act, the additional reasons for possession of weapon are:

(a) a military or medieval re-enactment or a historical demonstration;

(b) for a sporting organisation to possess a firearm to start sporting events;

(c) for a theatrical organisation to possess a firearm for a theatrical production;

(d) paint-pellet sports.

• [13] None of those additional prescribed reasons are applicable.
• [14] Mrs Scott applied to renew her licence based on an occupational requirement. The Act does not define 'occupational requirement'.
• [15] In considering the term 'occupational requirement' the Tribunal has previously had regard to definitions in the Macquarie Dictionary. The definition of 'occupation' considered was:

One's habitual employment; business, trade or calling; that in which one is engaged.[9]

• [16] The definition of 'occupational' considered was:

of or relating to occupation; of, relating to, arising from, or connected with an occupation trade or calling.[10]

• [17] The Tribunal in Feeney v Queensland Police Service (Weapons Licensing Branch) stated, correctly in my view:[11]

In my view the words occupational requirement used in section 11(c) also envisage and require an element of commerciality and profit making to the activities proposed as founding a reason for possession of a weapon.

....

I find commercial activity with a view to financial profit is required by applicants relying on occupational requirements as a reason for a weapon. That is the significant difference to applicants such as a sports or target shooter, or a recreational shooter or collector of weapons. (references omitted).

• [18] In McConnel v Queensland Police Service - Weapons Licensing Branch[12] the Tribunal observed, correctly in my view, that section 18 of the Act (rather than section 13 of the Act) is the relevant procedural provision to be considered on a renewal application and noted that there is no equivalent to section 13(5) of the Act in section 18. On a renewal it is necessary to show a genuine reason for possession of the weapon[13] and the relevant test is whether there is an occupational requirement. In that case the Tribunal observed:[14]

The Macquarie Dictionary relevantly defines 'requirement' to include: ...; a thing demanded or obligatory; ... a need...

'Require' means: ... to have a need of; need; ... make necessary or indispensable ... to call for or act as obligatory... to place under an obligation or necessity...

The word 'requirement', in the context of the Act, contemplates something which is mandatory, not optional, or as Member Howard said in Shaxson 'something which is required, rather than something which is merely convenient or a matter of preference. In the context, it reasonable connotes that the requirement cannot be met in some other way'. (sic) (references omitted)

• [19] The QPS contends that Mrs Scott's use does not fall within the bounds of an occupational requirement as the raising of cattle on her land is for personal consumption and not part of an occupation.
• [20] Mrs Scott's application to renew and annexure states:

(b) her genuine reason to hold a licence was an occupational requirement as primary producer on rural land[16] on a 10-acre property;[17]

(c) she derives no income from the property and had six cows for her own consumption.[18]

• [21] Mrs Scott's written and oral evidence is that:

(a) whilst she does not derive an income, she saves money by producing meat, which should be regarded as deriving an income.

(b) her main occupation is housewife/carer. She receives a carer's pension.

(c) she collects 'end of day bread' from a bakery at least twice a week to feed the cattle and so has no receipts for the cost of feed. She says she has done this for three years and has provided documentary evidence of regular collection during the period 1 August 2020 to 11 September 2020.[19]

(d) the number of cattle ranges from 6 - 11, with increased numbers when the cows calve.

(e) she previously conducted a larger breeding program on the land but that had ceased some years ago.

(f) about two or three times a year it was necessary to 'destroy' a cow or calf.

(g) if she has spare heifers or steers, she gives them to neighbours or to her daughter and from time to time swaps her bull for another to allow genetic diversity in the herd.

(h) her husband, who holds a weapons licence, is usually absent for a few days at a time each month and for about a week once a year.

(i) her immediate neighbour has informed her he no longer holds a weapons licence.

(j) veterinary practices nearby do not treat livestock. She has provided an email from a nearby practice, which confirms her evidence on this.[20]

(k) the nearest livestock practice is approximately an hour away.

(l) if she does not have a weapon's licence, she will be unable to euthanise injured animals quickly to minimise their suffering.

• [22] The definition of primary producer includes a person primarily engaged in the occupation of a grazier.[21]
• [23] On the evidence before me I am not satisfied that Mrs Scott is primarily engaged in the occupation of grazier. Whilst the activities conducted by Mrs Scott are in the nature of the activities caried on by a grazier, in their occupation as a grazier, and she derives what might be considered a notional income by way of savings, I am not satisfied that the activities carried out by Mrs Scott amount to an occupation as they are not commercial activities with a view to profit. It is more in the nature of a hobby.
• [24] Mrs Scott has an evidential or practical onus to provide information in support of her review application.[22] Although I accept Mrs Scott's evidence, I am not satisfied that Mrs Scott has demonstrated an occupational requirement to possess a weapon.
• [25] The Human Rights Act 2019 (Qld) commenced on 1 January 2020. In deciding this Application, I am acting as a public entity[23] in an administrative capacity. I accept that a decision under the Act potentially impacts Mrs Scott's rights.[24] I have considered Mrs Scott's human rights and am satisfied that the decision is compatible with human rights as the limitations on those rights are reasonable and justifiable.[25] The limitation of Mrs Scott's human rights is consistent with the principles and objects in the Act.[26]
• [26] I confirm the Decision.

[1] Application to review a decision filed 20 August 2020.

[2] Weapons Act 1990 (Qld), s 142 (the Act).

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 (QCAT Act).

[4] Ibid, s 20.

[5] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[9] Wilson v Queensland Police Service [2010] QCAT 347, [8].

[11] [2017] QCAT 203, Ibid, [37]-[42].

[12] [2019] QCAT 234.

[14] [2019] QCAT 234, [19] - [21].

[19] Exhibit 2, Product Donation - Collection Record attachment.

[22] Hazelton v Queensland Police Service [2021] QCAT 125.

[23] Human Rights Act 2019 (Qld), s 9.

[24] Ibid, s 24, s 31.

[25] Ibid, s 8, s 13, s 31, s 48, s 58.