Recently, Member Samantha Traves of the Queensland Civil and Administrative Tribunal (QCAT) decided that shooters who’d received a letter notifying them they could no longer hold the Wedgetail pistol, which they had a PTA for, was not a reviewable decision. These shooters:
- Are licensed,
- Applied for a PTA specifying calibre, barrel length, make and model,
- Received a PTA from Weapons Licensing Branch,
- Collected a very expensive firearm from a licensed dealer,
- Later, received a Weapons Licensing letter saying “you can’t own this.”
What did QCAT say? Member Traves said you can’t even appeal. Weapons Licensing, it seems, can recategorise any firearm, at any time, for any reason. In the prism offered by Member Traves, obtaining a PTA offers you no certainty that you can own the firearm you applied for and acquired through a dealer.
Before we turn to Member Traves’ conclusion that the pistol substantially duplicates the design and function of an AR-15, let’s first consider the consequences of this reasoning:
On 30 August 2016, Mr Yatras applied to Weapons Licensing for a Permit to Acquire in respect of a Wedgetail WT-15 Pistol Variant. The permit was issued by Weapons Licensing on 5 September 2016 and Mr Yatras purchased the weapon in December 2016…
Weapons Licensing then wrote to affected persons who had acquired the firearms pursuant to a Permit to Acquire, including to the applicants, advising them of the administrative error in classifying the weapons as Category H and that they were not licensed to possess the weapon…
In conclusion, although I do not consider the decision to re-classify the weapon was a ‘reviewable decision’, I accept that the practical effect of the re-classification was that the applicants were no longer authorised by their licence to use or possess such a weapon. This, however, does not mean that the re-classification decision becomes reviewable.
Imagine if you applied to your local council for a building permit and:
- You had a licensed builder,
- You gave all the drafts and particular of the house (truthfully),
- You received a building approval,
- You built and paid for a really nice house,
- The Council writes to you and says “you can’t have built this”,
- The courts say “knock it down and you can’t appeal to us, even though you were honest with your local council.”
That’s essentially the situation these shooters are in, but with expensive firearms instead of expensive houses.
QCAT’s reasoning to conclude a pistol functions like a rifle
Member Traves didn’t stop there. She went on to reason that this pistol, which can’t be effectively fired from the shoulder, is designed and functions like a rifle. Read for yourself:
[64] However, the experts also agree that the Wedgetail is not a “rifle” within the meaning of category D. The Joint Experts’ Report states:
The experts agree that the Wedgetail as manufactured (without a stock) would not be categorised as a ‘rifle’ under category ‘D’ because it is not practical to fire the Wedgetail from the shoulder, noting that:
a) The firer cannot get their eye behind the sight;
b) There is no stock to disperse the force of the recoil of the Wedgetail;
c) It is not practical to be able to brace the Wedgetail for accurate shooting.
The experts agree that a rifle is accepted by the Industry as being only a weapon that is fired from the shoulder. […][66] […] Without a stock, although the buffer tube can be rested against the shoulder when firing, the level of support when compared to a buttstock has been described as “very poor”.
[67] I will assume for the purposes of the review, that the Wedgetail is not a rifle. Further, there was no evidence before me that the Wedgetail has been designed or adapted for military purposes. […]
[73] I find that the Wedgetail is similar in appearance to the AR15 and M16 and that the Wedgetail “substantially duplicates” the AR15 and M16 in design and function.
Member Traves acknowledges it is “very poor” to use the Wedgetail pistol in the same way you would use a rifle. Then she offers a conclusion that in our opinion is irrational and internally contradictory: she finds that a firearm that cannot effectively be used as a rifle, duplicates a rifle in design and function.
If it can’t be effectively fired from the shoulder, how exactly does it duplicate a rifle in function? Isn’t the whole point of rifle to shoot it from the shoulder?
It is one thing to find that a firearm looks like another firearm: which has been the major factor in appearance laws in NSW, Tasmania and elsewhere. However, it is stretches rationality to say that something which cannot readily be used as a rifle duplicates the function of a rifle. That really is a very special line of reasoning, and one that we would encourage people to fight.
The broader implications of this seem to be that Weapons Licensing will be free to pickup all sorts of firearms where permits have already been issued and insist, with little basis, that you get to lose your firearms because they think it looks like or functions like a different firearm.
Maybe if local Councils had a similar technique for building permits, there’d be a bit more outrage.
Samantha Traves is a consultant at Barry.Nilsson
We note that Barry.Nilsson lawyers, specialising in civil actions like injury and insurance, congratulated Samantha in 2015 on her elevation to QCAT:
Special mention should be made of our Consultant, Samantha Traves, who has recently been appointed a part time Member of the Queensland Law Reform Commission, a Member of the Queensland Civil and Administrative Tribunal (QCAT) and a Member of the Scientific Council of AIDA. Well done Sam.
Sam’s LinkedIn notes her current consultancy role at BN.
We encourage licensed shooters to reflect on the difficulties presented above in QCAT decision-making and consider whether you really want to use firms like BN in the event of a civil dispute.
Write to the Police Minister
Even if you don’t read the rest of this post, email police@ministerial.qld.gov.au and link to this post. Ask the minister: why is that people receive permits and Weapons Licensing spend all this money litigating against permits they’ve issued? It’s nuts!