QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Clarke v Queensland Police Service – Weapons Licensing [2022] QCAT 415	
PARTIES:	ANDREW MICHAEL CLARKE
(applicant)	
	v 	
	QUEENSLAND POLICE SERVICE – WEAPONS LICENSING
(respondent)	
APPLICATION NO/S:	GAR031-22	
MATTER TYPE:	General administrative review matters	
DELIVERED ON:	20 December 2022	
HEARING DATE:	12 December 2022	
HEARD AT:	Brisbane 	
DECISION OF:	Member Lumb	
ORDERS:	1.	The decision made by the Respondent on 5 January 2022 to revoke the Applicant’s Firearms Licence is confirmed.	
CATCHWORDS:	FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – RENEWAL AND OTHER MATTERS – review of decision to revoke firearms licence under Weapons Act 1990 (Qld) – where breach of condition of licence – whether the applicant is no longer a fit and proper person to hold a firearms licence – whether the licence should be revoked
Explosives Regulation 2017 (Qld), s 99
Human Rights Act 2019 (Qld), s 13, s 24
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 20, s 24
Weapons Act 1990 (Qld), s 3, s 4, s 10B, s 29, s 50, s 60, s 142
Weapons Regulation 2016 (Qld), s 94

BIL v Queensland Police Service – Weapons Licensing [2022] QCAT 150
CTA v Queensland Police Service [2018] QCAT 440
Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
Lamble v Queensland Police Service – Weapons Licensing [2018] QCAT 201
MB [2022] QCAT 185
Powell v Queensland Police Service [2019] QCAT 418
Stretton v Queensland Police Service [2018] QCATA 37	
REPRESENTATION:		
Applicant:	Self-represented	
Respondent:	Acting Sergeant Bauer	
REASONS FOR DECISION
Introduction
[1]	By an Application to review a decision filed on 25 January 2022 (the Application), the Applicant has applied to review a decision of the Respondent made on 5 January 2022 (the Decision) to revoke the Applicant’s Firearms Licence issued on 27 November 2019 (the Licence). The Licence was revoked on two bases, first, pursuant to s 29(1)(c) of the Weapons Act 1990 (Qld) (the Weapons Act) on the ground that the Applicant had contravened a condition of the Licence and, second, that the Respondent considered that the Applicant was no longer a fit and proper person to hold the Licence pursuant to s 29(1)(d) of the Weapons Act.
[2]	By the Application, the Applicant seeks to have the Decision set aside and the Licence ‘reinstated’.
The statutory basis for reviewing the Decision
[3]	I consider that the Decision is a ‘reviewable decision’ pursuant to s 142(1)(e) of the Weapons Act, being a decision revoking a licence under the Weapons Act.
[4]	The Tribunal has jurisdiction to review the Decision by virtue of s 142(2) of the Weapons Act and s 9(1) and s 9(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
[5]	The purpose of the review of a reviewable decision is to produce the correct and preferable decision. The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits. The Tribunal must have access to any information that could have been or was considered by the original decision‑maker, plus any other material that becomes available and may be lawfully considered.
[6]	The Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made and there is no presumption that the original decision is correct.
The relevant provisions of the Weapons Act
[7]	Pursuant to s 29(1) of the Weapons Act, an authorised officer may, by a revocation notice given to a licensee, revoke the licensee’s licence if the authorised officer is satisfied that, relevantly, the licensee has contravened a condition, participation condition or special condition of the licence (s 29(1)(c)) or the authorised officer is satisfied that the licensee is no longer a fit and proper person to hold a licence (s 29(1)(d)).
[8]	Section 10B of the Weapons Act provides for various things the authorised officer must consider in deciding or considering, for the revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence. That section provides:
(1)	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 licence, an authorised officer must consider, among other things— 
(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; and
(ca)	whether there is any criminal intelligence or other information to which the authorised officer has access that indicates— 
(i)	the person is a 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.
(2)	However, for the issue, renewal or revocation of a licence, 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 the person.
(3)	Also, for the issue, renewal, suspension or revocation of a licence, a licensed dealer is not a fit and proper person to hold a licence unless each associate of the person is a fit and proper person to be an associate of a licensed dealer.
(4)	A person is not a fit and proper person to hold a licence if the person is prevented by an order, other than a temporary protection order, of a Queensland court or another court outside Queensland from holding a licence or possessing a weapon.
(5)	In this section—
relevant period means—
(a)	for the issue or renewal of a licence—the 5 year period immediately before the day the person applies for the issue or renewal of the licence; or 
(b)	for the suspension or revocation of a licence—the 5 year period immediately before the date of the suspension notice under section 28, or a revocation notice under section 29, is given for that suspension or revocation.
[9]	The principles and object of the Weapons Act are set out in s 3 which 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.
[10]	The object of the Weapons Act is to be achieved for firearms by, amongst other matters, requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm.
Subsection 29(1)(c) of the Weapons Act
[11]	The Respondent contends, and the Applicant accepts, that the Applicant had contravened a condition of the Licence.
[12]	A copy of the Licence was not contained in the material of either party. However, the Tribunal was informed by the Respondent, and it was accepted by the Applicant, that the Licence was subject to the following conditions:
(a)	‘RE1’ which provided:
(i)	The licensee is authorised to possess and use registered category A and B weapons for recreational shooting on rural land with the express consent of the owner of the land.
(ii)	The weapons must be securely stored, unless otherwise authorised, justified or excused by law.
(b)	‘SC1’ which provided:
(i)	The licensee is authorised to possess and use registered category A and B weapons for sports or target shooting at an approved shooting range.
(ii)	The weapons must be securely stored, unless otherwise authorised, justified or excused by law.
[13]	On 30 September 2021, the Applicant pleaded guilty to three charges (the Charges) in the Southport Magistrates Court. These are addressed in greater detail below. However, for present purposes, it is noted that one of the Charges involved a contravention of s 60(2) of the Weapons Act which related to a failure to ensure that secure storage facilities for four firearms were available at a property at Nerang in the State of Queensland. This involved a breach of a condition of the Licence that the weapons must be securely stored, there being no suggestion that the manner in which the firearms were stored was authorised, justified or excused by law.
[14]	In these circumstances, the Respondent had, and has, a discretion to revoke the Licence pursuant to s 29(1)(c) of the Weapons Act. Whilst s 29(1)(c) provides a discrete ground from s 29(1)(d) for the revocation of a weapons licence, I consider that the factors that are material to the exercise of the discretion under s 29(1)(c) encompass the factors set out in s 10B of the Weapons Act. In any event, the Respondent relied on s 29(1)(d) as an additional basis for revocation of the Licence.
Section 10B of the Weapons Act
[15]	I will address each of the prescribed matters which the Tribunal must consider in relation to the Applicant. The Respondent did not contend that any of ss 10B(1)(a) to (ca) of the Weapons Act was a material consideration; the Respondent relied on s 10B(1)(d).
Mental and physical fitness
As to the mental and physical fitness of the Applicant, there is no evidence to support a conclusion that the mental or physical fitness of the Applicant is such as would make him not a fit and proper person to hold a firearms licence.
Whether a domestic violence order has been made (or other considerations apply)
[16]	There is no evidence of a domestic violence order having been made, a police protection notice issued, or release conditions being imposed against the Applicant. 
Whether the Applicant has stated anything in or in connection with a firearms licence Application he knows is false or misleading in a material particular
[17]	There is no evidence the Applicant has stated anything in or in connection with an application for a firearms licence, or an application for the renewal of a licence, that the Applicant knew was false or misleading in a material particular.
Criminal intelligence etc
[18]	The Respondent has not pointed to any criminal intelligence or other information as contemplated by s 10B(ca).
Public interest
[19]	Subsection 10B(d) refers to the ‘public interest’.
[20]	As to the proper approach to this issue, I respectfully adopt the following observations of Member Traves (as Senior Member Traves then was) in Lamble v Queensland Police Service – Weapons Licensing:
[16]	The matters which must be taken into account in considering whether a person is no longer fit and proper to hold a licence, include the public interest. The public interest is a broad concept in which the interests of the community are considered having regard to the scope and purpose of the relevant legislation.
[17]	It is a term of wide import which has been said to embrace matters, among others:
…of standards of human conduct… tacitly accepted and acknowledged to be for the good order of society and for the well being of its members.
[18]	The term ‘public interest’ in the context of weapons licensing should therefore be applied in the context of the object of the Weapons Act which is to prevent the misuse of weapons. In furtherance of this object, public and individual safety are to take precedence over weapon possession and use. These purposes are achieved, in part, by strict requirements for licensing. Accordingly, when considering the public interest in the context of weapons licensing, individual and public safety are important factors to be taken into account.
(citations omitted)
[21]	As to whether a person is ‘fit and proper’, the test is not concerned with whether that person is ‘fit and proper’ in a general sense, but specifically with the person’s suitability to hold a weapons licence.
[22]	A licensee who is a fit and proper person in the context of the Weapons Act must have an appreciation of the person’s responsibilities and must discharge them; however, a licensee who lacks a proper appreciation of those responsibilities or does not discharge them is not, or may be adjudged not to be, a fit and proper person.
The Applicant’s case
[23]	In support of his contention that he was a fit and proper person, the Applicant stated that his whole work life and community endeavours have been for the betterment of his fellow citizens. In oral submissions, he stated that this involved operating his own security company, coaching a local football team, working with the Meals on Wheels organisation for 10 years, and working as a nurse. He also noted that he had trained at the Police Academy for five months. Up until the age of 50 the ‘worst offence’ that he had committed was a speeding ticket. The Applicant also pointed out that he is now 61 years of age and has arthritis. He stated that he was no threat to the community.
[24]	Otherwise, the Applicant’s case involved a response to each of the matters relied upon by the Respondent.
The Respondent’s case
[25]	As I understood the Respondent’s case, the Respondent points to the following matters which, it submits, demonstrate that the Applicant is not a fit and proper person to hold the Licence having regard to the public interest:
(a)	the respective Charges to which the Applicant pleaded guilty (and the Applicant’s evidence in relation to the surrounding circumstances);
(b)	the Applicant’s criminal history;
(c)	that a disassembled .222 rifle and a rifling button were found in the Applicant’s possession;
(d)	that two bags of chemicals were found in the Applicant’s possession which, it was alleged, could be used to ‘create explosive materials’.
The Charges
[26]	The first of the Charges concerned a contravention of s 60(2) of the Weapons Act. On 2 September 2021 the police executed a search warrant at the Nerang property. The occupiers of the property were the Applicant and two family members. During the search of the property, three firearms were located in an unsecured wardrobe in the Applicant’s bedroom, a Category A shotgun and two Category B rifles. A further Category B rifle was located in a non-functional refrigerator in a ‘shed’ at the rear of the property (which the Applicant stated was a ‘double brick fortified workshop’ (the Workshop)). The refrigerator was secured by padlock, but the refrigerator was not attached to any part of the structure. The key to the padlock was obscured from view but stored a short distance away on a hook on the wall.
[27]	The third of the Charges also arose out of the search of the Nerang property on 2 September 2021. The Applicant was charged with a contravention of s 99(2)(a)(ii) of the Explosives Regulation 2017 (Qld) in that the Applicant failed to store small arms ammunition (being rifle and pistol ammunition) in a secured container that was inaccessible to a person who was not authorised to possess the said explosives. A large number of rounds of ammunition (of different calibres) were located in the unsecured wardrobe of the bedroom and also on top of the refrigerator in the Workshop.
[28]	The Applicant had moved into the Nerang property to stay with, I understand, his father. The Applicant had brought his firearms and ammunition with him. The Applicant provided photos of the interior of the Workshop which included, amongst other things, a lockable metal gun safe (including padlock) and a steel container (with padlocks) bolted to the floor. The Applicant stated that he was storing the weapons and ammunition found in his bedroom because they were the weapons and ammunition that could not be stored in the Workshop as there was no room for them. The Applicant stated that although the weapons were located in an unlocked cupboard, the door to the bedroom was locked, the windows and doors to the house had security grills, the property itself was secured with high gates, and there was a large guard dog on the property. The property was also fitted out with external motion detector cameras. The Applicant provided photos depicting each of those things. The Applicant’s contention was that, although the weapons and ammunition were not stored as required by the respective legislation, they were still secured. The Applicant also stated that the search occurred at the height of Covid and that he was not more than 30 metres from the weapons at all times. 
[29]	While it may be accepted that some security measures were in place in relation to the storage of the firearms and ammunition, the fact remains that such storage plainly did not comply with the requirements of the legislation. Further, given the storage utilised by the Applicant for other firearms owned by him, his background in the security industry, and the Applicant’s acknowledgement that the storage did not comply with the legislation, I am satisfied that the Applicant was aware of such non‑compliance at the time he chose to store the weapons in the cupboard of the bedroom.
[30]	There are other aspects of the Applicant’s evidence which I consider bear on the question as to whether the Applicant is a fit and proper person to hold a firearms licence. 
[31]	First, in his written submissions dated 30 August 2020, the Applicant stated:
If I had it in toolbox bolted to my garage floor and went on holidays for six months that would be okay but not my situation. Which scenario would be safer?
[32]	The Applicant also made a similar submission in his oral submissions.
[33]	In my view, in seeking to suggest that the manner of storage adopted was ‘safer’ than the hypothetical scenario posed (which would have complied with the Weapons legislation), the Applicant has failed to appreciate the necessity for strict compliance with the obligations of a weapons licence holder under the Weapons legislation. 
[34]	Further, the Applicant also stated:
I believe this whole episode is an attempt by police to justify the raids which they [sic] came up empty-handed and rather than admit they made a mistake are trying to portray an arthritic man in his 60s as some kind of threat they have saved society from. When does a man who’s [sic] whole life and community endeavours which have been for the betterment of his fellow citizens suddenly at this age become a threat to those same people.
Police seem to selectively pick and choose bits of information to paint a picture that supports their narrative. Reminds me of the Ways and Means Act I learned at the Police Academy …
[35]	The Applicant also referred to the police ‘narrative’ in his oral submissions.
[36]	Regardless of the reason for the search, the fact is that during that search the police located firearms and ammunition in circumstances which constituted a contravention of the Weapons and Explosives legislation respectively (and in respect of which the Applicant pleaded guilty). In my view, the Applicant’s unsubstantiated assertion in relation to the motive of the police demonstrates a lack of appreciation of the importance of complying with the relevant legislation and the role of the police in ensuring compliance with such legislation.
[37]	The second of the Charges related to a search warrant executed at a rural property at which a caravan was located behind a shed near the rear boundary of the property. The caravan had a bolt and padlock which were unlocked at the time of execution of the warrant. The police located scattered boxes of ammunition (of various calibres) on the floor of the caravan. The ammunition comprised scattered boxes of ammunition, including 7.62 mm, .303 British, 12 gauge, .38 Special and .270 Winchester, 9 mm small arms ammunition and also 10 boxes containing 500 rounds each of .22 Long Rifle small arms ammunition. The Applicant stated to police that he believed the caravan to be padlocked and inaccessible to any other persons and that he had not been to the property in about a year and did not specifically recall where the ammunition had been stored in the caravan. The Applicant confirmed his belief that the caravan had been padlocked. I accept the Respondent’s evidence that the caravan was not padlocked. In the above circumstances, I consider that the Applicant’s attitude towards the storage of a significant quantity of ammunition can be characterised as, at least, careless.
The Applicant’s criminal history
[38]	On 31 May 2011, the Applicant pleaded guilty to a charge of unlawful possession of weapons (Category R) in contravention of s 50(1)(c)(i) of the Weapons Act. No conviction was recorded and the Applicant was fined $300.00. The weapon in question was described by police as a ‘mobile phone disguised Taser’. The Applicant stated that he had previously informed the police that the device found was not a Taser but was a hand‑held electric shock device he used like a cattle prod on the dairy farm. Regardless of the use to which the device was put, the Applicant pleaded guilty to the charge which involved unlawfully possessing a category R weapon. I consider that the 2011 charge is an additional matter which tends to demonstrate that the Applicant is not a fit and proper person to hold a firearms licence. 
[39]	On 31 May 2013, the Applicant pleaded guilty to two charges. The first was a charge of possessing money in the sum of $6,500 that may reasonably be suspected of being tainted property. The second charge was that the Applicant was in possession of a laptop computer that he had used in connection with the commission of a crime as defined in Part 2 of the Drugs Misuse Act 1986, namely producing dangerous drugs. On both charges a conviction was recorded, and the Applicant was fined $12,000.00. In my view, whilst these charges, in isolation, would not necessarily demonstrate that the Applicant is not a fit and proper person, when considered in conjunction with the 2011 charge, the 2013 conviction and the subsequent Charges, they demonstrate a disregard for compliance with the law.
The disassembled rifle
[40]	The Respondent’s case is that the police were told that the .222 rifle was going to be ‘re-sleeved’ and the ‘9 mm Luger button’ would have ‘re-rifled’ the weapon to take handgun ammunition. The Applicant stated that he had an ‘idea’ to rebore the rifle to accept 9 mm ammunition. He accepts that he commented that the 9 mm ammunition was cheaper and acknowledged that he had a rifling button in his possession. However, he also stated that he had not put the idea into practice and that it was then nothing more than an idea. Accepting that to be the case, it remains the fact that the Applicant harboured the idea of modifying the rifle. The Respondent’s case was that the Applicant was not licensed to make any modifications to firearms. This was not disputed by the Applicant. 
[41]	I consider the fact of forming an idea to modify the rifle coupled with the disassembly of the rifle and the acquisition of a rifling button, in circumstances where the Applicant was not licensed to make any modifications to the rifle, indicates that the Applicant failed to fully appreciate the importance of compliance with his obligations as the holder of a weapons licence.
The bags of chemicals
[42]	During the search of the Nerang property on 2 September 2021, the police found a 1 kg bag of aluminium powder and a 3 kg bag of red iron oxide in mailbags addressed to the Applicant. These chemicals were located in the same bedroom as the firearms were located. Advice provided by the Queensland Police Service Explosive Ordinance Response Team is that these chemicals, whilst not in combination at the time they were located, can be used to create explosive materials; that aluminium powder can be added to any home-made explosive to make it more sensitive and more powerful; and that red oxide can be used to make thermite-incendiary charges for burning through metal.
[43]	The Applicant disputes that the combination of the two chemicals can produce an explosive reaction. The Applicant submitted that what is produced is an ‘exothermic reaction’. The Applicant denied intending to use the products to create an explosive. The Applicant asserted that the intention was to use the two chemicals for the purposes of welding.
[44]	The Applicant does not purport to have any expertise in explosives. I accept the evidence adduced by the Respondent that the two chemicals in question are capable of forming components of an explosive. However, the Respondent’s evidence did not suggest that the chemicals could not be used for a benign purpose (such as the purpose identified by the Applicant). In those circumstances and considering the Applicant’s uncontradicted evidence that the chemicals were intended to be used as a welding material, and his denial that he ever intended the chemicals to use as an explosive, I am not satisfied that the Applicant had any intention to use those chemicals in order to create an explosive. Consequently, I am not satisfied that the possession of the chemicals in question supports a conclusion that the Applicant is not a fit and proper person to hold a weapons licence. 
Lack of weapons training course
[45]	In the course of the oral submissions made on behalf the Respondent, it was contended that it was relevant to take into consideration the fact that the Applicant had not undertaken weapons training subsequent to the events the subject of the Charges.
[46]	While I consider that, as a general proposition, the undertaking by an applicant of a weapons training course would assist in demonstrating that the applicant was a fit and proper person, I do not accept that the failure to undertake such a course would tend to demonstrate that an applicant is not a fit and proper person to hold a weapons licence. I do not consider that any adverse inference can be drawn from a failure to undertake such a course.
Conclusion in relation to revocation of the Licence
[47]	Having regard to all of the factors, and consistently with each of the principles underlying, and the object of, the Weapons Act, I am satisfied that:
(a)	the Applicant is no longer a fit and proper person to hold a weapons licence (pursuant to s 29(1)(d) of the Weapons Act) having regard to the public interest; and
(b)	further, that in circumstances where a condition of the Licence was contravened, it is appropriate to exercise the discretion to revoke the Licence pursuant to s 29(1)(c) of the Weapons Act. 
[48]	I take into account the Applicant’s work history which involved a number of occupations which support the community at large (including Meals on Wheels), the Applicant’s social contribution through coaching football, and also his lack of any criminal history prior to the age of approximately 50. However, I consider that the countervailing factors addressed above, both individually and collectively, satisfy me that the correct and preferable decision is that the Licence should be revoked. In particular, I consider that the nature of the Charges, particularly the Charge in relation to the firearms, and the Applicant’s attitude concerning the circumstances in which the Charges were brought, in conjunction with his criminal history, outweigh the positive factors raised by the Applicant. I also consider that the formation of the idea to modify the .222 rifle, when the Applicant would not have been authorised to do so, fortifies my conclusion.
[49]	For the above reasons, the correct and preferable decision is that the Respondent’s decision to revoke the Firearms Licence is confirmed.
Human Rights Act
[50]	I consider that in making this Decision, the Human Rights Act 2019 (Qld) (the HRA) has application. 
[51]	Although no argument was directed at this issue, I have proceeded on the basis that the Application potentially impacts the Applicant’s human rights, including under s 24 of the HRA. This section provides:
(1)	All persons have the right to own property alone or in association with others.
(2)	A person must not be arbitrarily deprived of the person’s property.
[52]	I find that the Applicant’s human rights have not been limited to an extent and in a manner that is not reasonable and justifiable. In so finding, I have had regard to the matters addressed above, including:
(a)	the nature and importance of the purpose of the limitations imposed by the Weapons Act, including:
(i)	the principle under the Weapons Act that weapon possession and use are subordinate to the need to ensure public and individual safety;
(ii)	the principle under the Weapons Act that public and individual safety is improved by, relevantly, imposing strict controls on the possession of weapons;
(iii)	the object of the Weapons Act to prevent the misuse of weapons;
(b)	the matters addressed above, including the circumstances of the Charges and the Applicant’s evidence in relation to same.
Orders
[53]	For the above reasons, and pursuant to s 24(1)(a) of the QCAT Act, the decision made by the Respondent on 5 January 2022 to revoke the Applicant’s Firearms Licence is confirmed.