New Strict Guidelines Imposed by QPS for Weapons Licensing – How to Appeal a Weapons License Refusal
In Queensland, and all other states and territories in Australia, a person must have a Weapons Licence (also referred to as a firearms licence in other jurisdictions) to possess and use a firearm. In each jurisdiction within Australia, a person must demonstrate a “genuine reason” for holding a Weapons Licence, and all firearms must be registered by serial number to the licenced owner.
In the wake of mass shootings and increased firearms related deaths in other countries, such as the United States, these restrictive firearms regulations seem sensible and are required to ensure public safety.
In Queensland, the Queensland Police Service (QPS) must consider the following factors when deciding whether a person is a fit and proper person to possess a firearm licence:
- the mental and physical fitness of the person
- whether a domestic violence order has been made, police protection notice issued, or release conditions imposed against the person
- whether the person has stated anything in or in connection with a licence application that they know is false or misleading
- whether there is any criminal intelligence or other information that indicates the person is a risk to public safety or it would not be in the public interest to authorise them to possess a weapon
- the public interest.
But more recently, at the beginning of 2021, the QPS Weapons Licensing Unit has made their guidelines more strict than ever. These changes will result in many applicants being denied a fair opportunity to show cause as to why they are fit and proper persons to hold a weapons licence.
For example, the new guidelines will result in refusals to applicants who have accumulated too many demerit points, even if they do not have a criminal history.
Report on the QPS Regulation of Firearms by the Queensland Audit Office
What is the main factor that has resulted in these more stringent measures being imposed? In short, its likely because the number of licence holders and firearms in Queensland is growing rapidly, and a report published by the Queensland Audit Office (QAO) concluded that the QPS has not been able to keep up.
As of 31 December 2019, 185,742 people in Queensland held current firearms licences and 829,743 firearms were registered. The number of people holding firearms licences has increased by 12 percent and the number of registered firearms has increased by 17 percent since December 2015.
In January 2020, the Queensland Audit Office (QAO) began a performance audit on the regulation of firearms in Queensland. The objective of the audit was to assess whether the QPS effectively regulates the acquisition, possession, use, and disposal of registered firearms to ensure community safety.
The report concluded that the QPS could be more effective in the regulation of registered firearms. The QAO report concluded that:
- The QPS could strengthen its decision-making controls and guidance to staff to ensure it puts public interest and safety first;
- The QPS could be more proactive in monitoring firearm licence holders and dealers; and
- When the QPS identifies non-compliance, it does not always seize those firearms from the unsuitable persons within their 28 day target.
The QAO made a number of recommendations to both the QPS, and also recommendations with respect to the potential review of the Weapons Act 1990 so that opportunities can be identified to improve clarity in the Act and provide a greater focus on public safety.
One of the recommendations, was to consider expanding the definition of finding of guilt to include convictions which are not recorded, and to consider whether the 5 year exclusion period is appropriate (or whether it should be extended to a longer period).
Queensland Police Service Response to QAO Report
In response to the QAO report, the QPS Weapons Licensing Unit has implemented amended guidelines in assessing the suitability of applicants seeking to obtain a Weapons Licence.
The guideline published by the QPS demonstrates the difference between their previous approach and their new approach to weapons licence suitability, as set out below:
|Disqualifying offences – false and misleading information
|Applicants who provided false and misleading information on forms were offered a Show Cause opportunity
|Applicants who provide false and misleading information on forms are now rejected under Section 10B(1)(c) & (d), 157 & 158 of the Act
|Domestic and Family Violence Protection Order (between 5 and 10 years after order issued)
If disclosed – continue assessment with no further action required
If false and misleading information provided – continue assessment with a warning letter about ensuring true and correct information with the application in future
If physical violence is involved, rejected in the public interest.
If no physical violence, Show Cause and upon response escalate to a Team Leader for assessment of circumstances.
If false and misleading information provided, auto-reject under Section 10B(1)(c) & (d), 157 & 158 of the Act
|Domestic and Family Violence Protection Order (over 10 years since order issued)
|Continue to issue
|Escalate to Team Leader for assessment of circumstances
|Found guilty of a disqualifying offence but no conviction recorded
Within 5 years – Show Cause
Over 5 years – continue to issue
Within 5 years – rejection in the public interest
Over 5 years – 1 offence, warning letter about committing further offences and continue to issue OR. more than 1 offence, reassign to Team Leader for assessment OR applicants who provide false and misleading information on forms are now auto-rejected under Section 10B(1)(c) & (d), 157 & 158 of the Act
|Three or more drink driving, unlicensed driving or dangerous driving offences (any combination) or more than 30 demerit points within the previous 5 years
|Reject in the public interest
|Driving involving drugs within the previous 5 years
One offence – warning letter about committing further offences and continue to issue
More than one offence – auto-reject in the public interest or
Applicants who provide false or misleading information on forms are now auto-rejected under Section 10B(1)(c) & (d), 157 & 158 of the Act
Disqualifying Offences means: Within five years of a conviction for drugs; involving the use of violence, threatened use of violence, weapons, or domestic violence full protection order or release from a custodial sentence as per section 10B(2) & 10B(5) of the Weapons Act 1990.
False and Misleading: Section 158 of the Weapons Act 1990 states that a person must not state anything in a document required to be kept, given or made under this Act that a person knows is false or misleading in a material particular.
Show Cause: This is a letter to ask the licence holder to explain their offences and why they believe themselves to be fit and proper in a response addressed to the authorised officer.
What Impact will this have on Weapons Licence Holders and Applicants?
The QPS’s response to the QAO report, as reflected in the guidelines, appears to be focused largely on sending automatic rejection letters to applicants and existing firearms holders, in circumstances where those individuals would have previously had an opportunity to show cause.
The “show cause” process is an important component of the licencing scheme, since it usually affords individuals with the opportunity to explain the mitigating circumstances, and to demonstrate why they should be permitted to hold, or continue to hold, a licence. It is therefore concerning that the QPS has decided to simply “auto-reject” persons who meet certain criteria, without affording those individuals a fair opportunity to provide written submissions.
Whilst this change in policy may limit the amount of licences granted to those with a history of offending, it also means that responsible persons who are fit and proper, and who only have relatively minor criminal and/or traffic histories, may face a rejection of their application or existing licence.
What are my Review Options?
If you receive a letter from the QPS providing you with an opportunity to ‘show cause’ by way of written submissions, the QPS has not made its decision yet and you have an opportunity to put forward submissions on why your licence should be granted or why your existing licence should not be revoked. Applicants and licensees in this position should always seek legal assistance preparing that response, since it is much more cost effective than Queensland Civil and Administrative Tribunal (QCAT) proceedings.
In contrast, persons who have had their applications for a firearms licence refused, or who have had their existing licences revoked, should obtain legal advice immediately since there is a strict 28 day limitation period for appealing the decisions in QCAT by way of a review application.
Under section 142 of the Weapons Act 1990, applicants have a right to apply for a review of decisions in QCAT for decisions which refuse the granting of a new licence, refuse the renewal of an existing licence, or revoke an existing licence.
If you do not file your review application within those 28 days, you may miss out on your opportunity to have the decision reviewed by a member of QCAT, and you could be prevented from re-applying for a licence for a period of three (3) years.
Why Potts Lawyers?
Potts Lawyers are highly experienced at assisting Weapons Licence holders and applicants with both the show cause process, and with disputing decisions in QCAT.
Potts Lawyers are experienced at assisting clients with their weapons licensing matters from start to finish. Whether you are seeking advice prior to applying, or whether you have received your rejection letter, Potts Lawyers are able to provide advice and assist you in navigating the complexities surrounding firearms registration in Queensland.
Potts Lawyers is highly experienced at assisting clients prepare show cause responses in Weapons Licensing matters. Each client’s circumstances are unique, and what information and supporting documentation is required will differ greatly on a case-by-case basis.
However, the recent limitation of show cause events and the ‘auto-reject’ approach by the QPS, means that more applicants and licence holders will face refusals and revocations, without being afforded a fair opportunity to respond to the QPS in writing.
Anyone in this position still has the opportunity to apply for a review of the decision in QCAT, however getting guidance from a lawyer experienced in Weapons Licensing matters can greatly increase your prospects of succeeding since the legal tests that need to be satisfied redrive not only from the legislation but also from case law which is constantly evolving.
Contact us for legal advice and assistance
If you are thinking about applying for a weapons licence, or have been issued with a letter from Weapons Licensing refusing or revoking your licence, contact Potts Lawyers immediately to assess your eligibility for a free consultation.