Applicants for a Queensland Weapons Licence must satisfy a range of eligibility and suitability criteria before being granted an application. In the recent landmark QCAT decision of XPR v Queensland Police Service, the Tribunal has clarified that the police should not consider offences for which no conviction is recorded in deciding an application. As a consequence, applicants whose weapons licence application has been previously rejected many now potentially have a basis to reapply for a licence.

Background

In September 2021, XPR applied to the Queensland Police Service for a firearms licence. In October 2022, the Police rejected the application because the applicant was not “fit and proper” to hold the licence. The reason was that applicant had a previous conviction for producing and possessing cannabis for which he was fined $700.00, with no conviction recorded.

The applicant appealed the decision to Queensland Civil and Administrative Tribunal.

Summary of Tribunal’s reasoning

Section 12(1) of the Penalties and Sentences Act 1992 (Qld) (“PSA”) gives the court discretion as to whether a conviction should be recorded for certain offences. 

Section 12(3) Penalties and Sentences Act goes on to say that a “a conviction that is not recorded is taken to not be a conviction for any purpose unless an exception applies”. This means that where a conviction has not been recorded, it can only be used in limited and explicit stated circumstances.

Section 10B(1) of the Weapons Act 1990 (Qld) (“Weapons Act”) contains a list of matters that the police must take into account in determining whether a person may hold a weapons licence.  The list is not exhaustive.  There is no specific exception stating that the police may consider a conviction for an offence for which no conviction was recorded.

The Tribunal noted that section 10B(1) of the Weapons Act was worded in general terms.  It did not specifically state that a non-recorded conviction could be considered as an exception to section 12(3) of the Penalties and Sentences Act.

The Queensland Police Service submitted that subsection 10B(1) of the Weapons Act does not provide for an express limitation on the information that can be used to make a decision. In absence of an express limitation, the Queensland Police Department’s use of the conviction should be considered an exception to the prohibition of considering not-recorded convictions in section 12(3) of the PSA.

The Tribunal did not accept the Queensland Police Service’s submissions. It held that any exception to s12(3) of the Penalties and Sentences Act needed to be expressly stated for a non-recorded conviction to be taken into account.  The use of the phrase “other things” in subsection 10B(1) of the Weapons Act was not sufficient to operate as an exception.

Accordingly, the Tribunal held that XPR’s not-recorded conviction should not have been considered by the Queensland Police Service when rejecting the firearms licence application.

The original decision was set aside and XPR was granted a firearms licence.

Concluding Comments

XPR v Queensland Police Service provides further support that non-recorded convictions should only be taken into account in administrative decision making if there is a clear legislative intention.  On a practical level, the decision clarifies that, for weapons licence applicants, the police should not consider whether they have a non-recorded conviction.  It remains to be seen whether the decision will be further appealed, or if there will be legislative amendment to the Weapons Act.

If you have any further questions about this case, or Weapons Licences generally, please contact one of our expert lawyers. 

This Case Note is for information purposes only and does not constitute legal advice.

Authors: Rebecca Fogerty, Cassandra Brown