Feeney v Qld Police Service - Possession of Category H - Loose Cannon

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Feeney v Qld Police Service (Weapons Licensing Branch) 2017 QCAT 203 is the latest in a line of cases dealing with the vexed question of possession of Category H licences by either farmers or those assisting farmers with pest extermination.   

A number of people have spoken to me about the decision as though it represents something new.  It does not.  I can only imagine that the people who viewed it as being something new were responding to the decision on a visceral level, and I can understand why.

Lt Col Feeney (Ret)(‘F’) completed national service in 1959, undertook a tour of duty in Vietnam in 1968, and remained in the Army Reserve until he reached the mandatory retirement age for reservists of his rank- 50 year of age.

During his considerable service with the Army Reserve and Army in Vietnam, one would assume that F would have received a great deal of training with a service pistol, even although unlike rifle training, pistol training in the ADF, tends to be on more of an ‘as needed’ nature.

Such training would have been supplemented by that found in his local pistol club.

Also, unlike the British Army during Victorian times, and into the earlier part of the 20th Century, the Australian Army promotes very much on ability, and, having reached the level of Lieut Colonel, one could assume that F’s possession of a firearm would not pose any risk to the community.

Infact, many would agree with me that the Lieut Colonel. Who I genuinely thank for his service, and doff my hat to and salute, has well and truly earned the right to possess a pistol.

This is not however the matter for consideration in this case.

The question here is whether F meets the ‘business or employment’ requirement of his licence.  Business is defined in Schedule 2 of the Act to mean a business carried on under the authority of the licence. See also s11 & s 13(5).

Upon retirement from the reserve, F established a company called Professional Vermin Control and Training Pty Ltd (‘PVCT’).  Since formation in 1997 it has provided vermin control for the rural community on about 5-6 times a year.

While farmers were charged a fee for service, the fee was designed to cover costs and not make a profit. Formal contracts were also not used – agreement with a farmer usually just taking the form of a hand shake.

F also spent time working on a property called Keggabilla- this work was unpaid, although he was allowed to agist 12 head of cattle.  There was no evidence on income earned from this.

F maintained from his experience, that use of a handgun is the only safe firearm to be used to destroy an animal in close or confined spaces. Rifles are calibrated for taking long shots, and are overly powerful, and difficult to use at short range.

Where feral pigs have been trapped, guidelines mandate that they should be shot from inside and not through the trap- thus the muzzle must be inside the trap.  There would also be a high risk of over penetration if the pig was shot with a rifle.

F was first issued with a cat H licence for sports and target purposes in August 1997.  One year later it was endorsed so as to enable its use in the destruction of animals in the conduct of a business of occupation.

Police submitted s11 and s13(5) require an occupational requirement for possession.

F submitted s11 defines parameters of genuine reasons. S13 is subservient to s11 and does not limit its operation. Submits word ‘occupational’ be read broadly and not be limited to paid employment.

S13(5) talks about necessity of a weapon in the applicant’s business or employment. 

Macquarie Dictionary defines ‘to be in business’ as ‘to earn a living from a commercial activity’.

Hope v Bathurst City Council (1980) HCA 144- High Court- commercial enterprise- commercial enterprise- carrying on- suggests repetition of activity for profit.

Wilson v Qld Police Service (2010) QCAT 347 – Equine Chiropractor. 4-5 times a year for two weeks went to farm to muster cattle and cull pests. Consideration of habitual employment. Payment in kind not actual payment in money as one would expect for professional shooter / musterer.  Tribunal view needed a commercial relationship to qualify applicant to meet occupational requirement for a weapon.

F obtained advice from Weapons Licensing Branch to develop a suitable structure. Use of handgun from register 30 days 2014, 16 days 2015 and 1 day 2016.

In Cseke v Qld Police (Weapons Licensing Branch) (2005) QCA 466 firearm had not seen recent use-Cseke had not worked with animals for three years not on point to argue potential for use exists and need might arise in future. 

I have always found the ratio decidendi in Cseke v Qld Police (Weapons Licensing Branch) (2005) QCA 466 to be a curious one. As most Police Officers spend their entire career without ever drawing their service pistol at anything more than a target during a lifetime of Policing.

Observation by Tribunal that the Company was a not for profit operation, and there seemed to be little difference between pre-incorporation operation and post incorporation operation.

 Relationship of F with Stiller are like the equine chiropractor and property owner in Wilson- namely a relationship of a casual nature that is friendship based.

Unable to conclude involvement in PVCT or work on Keggabilla provides an occupational requirement for a concealed firearm as required by 11© of the Act.

Lesson- if you want to justify a handgun for primary production purposes in Queensland, expect to meet stringent commercial standards also document and be able to prove your ‘need’ for it.

Simon Munslow

National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962
E: solicitor@bigpond.com
W: firearmslawyer.com.au

Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at University.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.

He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.

This article is written for general information only and does not constitute advice. 
He can assist you with:

Criminal law & Administrative law and in particular that related to Firearms

• All firearms, weapons and game charges
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• Possession of unregistered firearms
• Unsafe transportation & storage matters
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