Commissioner for State Revenue v Phillips [2026] QCATA 35

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Commissioner for State Revenue v Phillips [2026] QCATA 35 PARTIES: COMMISSIONER FOR STATE REVENUE (applicant/appellant) v LOUISE MAREE PHILLIPS (respondent) APPLICATION NO/S: APL394-23 ORIGINATING APPLICATION NO/S: GAR676-21 MATTER TYPE: Appeals DELIVERED ON: 1 April 2026 HEARING DATE: 21 August 2025 HEARD AT: Brisbane DECISION OF: Judicial Member Rinaudo AM ORDERS: IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT: The decision in GAR676-21 made on 30 October 2023 is set aside and substituted with a decision that the application to review a decision filed 3 December 2021 is dismissed. There are no orders as to costs. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where original applicant applied for review of decision by Commissioner to refuse home builder grant – where member below allowed grant and amended administrative direction to enlarge eligibility criteria – where Commissioner appealed that Tribunal below lacked jurisdiction to exercise discretion to amend eligibility conditions – whether Tribunal below had jurisdiction to exercise discretion on review – adequacy of reasons Acts Interpretation Act 1954 (Qld), s 20 First Home Owner Grant and Other Grants Act 2000 (Qld), s 8(1)(h), s 25Q(3), s 25R(1), s 58, s 59, s 60(2)(b), Schedule Statutory Instruments Act 1992 (Qld) -- 1 of 17 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c), s 142(1), s 146 Ericson v Queensland Building Services Authority [2013] QCA 391 Esso Australia Pty Ltd (t/as Esso) v Australian Workers Union (2017) 350 ALR 404 Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 Owen v Menzies [2013] 2 Qd R 327 Pennisi & Pennisi v Commissioner of State Revenue [2025] QCAT 327 Phillips v Commissioner of State Revenue [2023] QCAT 426 Pickering & Anor v McArthur [2010] QCA 341 RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185 Saunders v Department of Communities [2011] QCAT 533 Shi v Migration Agents Registration Authority (2008) 235 CLR 236 Vink v Commissioner of State Revenue [2024] QCAT 448 APPEARANCES & REPRESENTATION: Applicant: Black, M, i/b Queensland Revenue Office Respondent: Prygiel, R, solicitor REASONS FOR DECISION Background [1] By way of appeal lodged 27 November 2023, the Commissioner for State Revenue (‘Commissioner’) seeks to overturn a decision by a QCAT member made on 30 October 2023 to award a first home builder grant (‘grant’) to the respondent Ms Phillips. [2] Ms Phillips owns her home through a company title structure, which preceded strata title legislation. [3] The land on which her home resides is owned in fee simple by Toorak Holdings Pty Ltd. In the late 1950s an apartment block was constructed on this land, of which one unit belongs to Ms Phillips. Ms Phillips purchased her unit from Toorak Holdings Pty Ltd in 2019. [4] On 2 July 2020 the Queensland government entered into the National Partnership Agreement (‘NPA’) with the Commonwealth government, providing for the funding of the first home builder grant. [5] On 30 July 2020 the Queensland Treasurer approved the Australian Government HomeBuilder Grant—Queensland (‘administrative direction’), intended to guide the Commissioner in the administration of the grant. -- 2 of 17 -- 3 [6] On 20 August 2020 the First Home Owner Grant and Other Grants Act 2000 (Qld) (‘FHOG Act’) was amended to provide for the administration of the grant. [7] On 2 November 2020 Ms Phillips contracted with a builder to renovate her home and on 3 November 2020 she applied for the grant. [8] On 2 July 2021 the administrative direction was amended and a paragraph added (paragraph 63) granting the Commissioner discretion to amend the original administrative direction, in circumstances where it was inconsistent with the NPA. [9] On 3 August 2021 the Commissioner refused Ms Phillips’ grant application on the basis it did not apply to homes owned through a company title structure. [10] Ms Phillips objected to that decision asserting (inter alia) the Commissioner had failed to exercise the discretion in the administrative direction to amend the direction to allow her claim. Proceeding below [11] The Commissioner refused the objection on 6 October 2021. On 3 December 2021 Ms Phillips applied to QCAT for review of the objection decision, resulting in the proceeding below. [12] There the learned member set aside the Commissioner’s decision and replaced it with a decision that Ms Phillips be paid the grant, because: (a) The original administrative direction was inconsistent with the FHOG Act and the NPA in its constraining the category of eligible grantees; (b) The administrative direction was amended (and the discretion to amend it to make it consistent with the NPA added) before Ms Phillips made her application; (c) There was no basis for the Commissioner’s decision the amended direction did not apply to Ms Phillips; (d) It is clear from the program guidelines established by the NPA that the grant must apply to those who own homes under a community title structure; (e) To ensure the proper administration and integrity of the grant the Tribunal should vary the amended direction to align it with the NPA, allowing claims for the grant for a possessor of land under company title. Appeal grounds [13] The Commissioner now appeals that decision. [14] The Commissioner asserts the learned member made the following errors: (a) The discretion to amend the administrative direction was not part of the reviewable decision. The member incorrectly assessed the scope of the decision to be reviewed, which would have confined the scope of the Tribunal’s review jurisdiction; (b) The Tribunal erred in law by failing to find (i) the scope of the original decision was only to confirm, or to set aside and substitute another decision for, the Commissioner’s original decision. -- 3 of 17 -- 4 That decision was only to confirm whether the Commissioner was satisfied that, per s 25R(1) of the FHOG Act, the grant was payable by reference to the requirements at s 25Q(3)(a)-(c); (ii) regarding the original decision and the objection decision, A. the decisions were limited to determining whether the respondent complied with the eligibility criteria for the grant under the amended administrative direction and whether the transaction for which Ms Phillips sought the grant was an eligible transaction under the amended direction; B. the decisions did not include a determination whether to exercise the discretion under paragraph 63 of the amended direction to amend or vary the direction’s terms to change the definition or criteria for an eligible transaction; (iii) in the premises A. the Tribunal’s jurisdiction did not extend to reviewing a decision by the Commissioner whether to exercise the discretion under paragraph 63; B. the Tribunal’s functions under s 19(c) of the QCAT Act did not include the discretion under paragraph 63; (c) further, the Tribunal erred in law by (i) finding it had the discretion to amend or vary the direction under paragraph 63; (ii) purporting to exercise the discretion conferred by that paragraph, ‘to include in the eligibility criteria a person who has an interest of a kind allowed for in the provisions of s 8(1)(h) of the FHOG Act’ (a company title interest). [15] Alternatively the discretion should not have been exercised because: (a) on a proper construction of the grant’s context it should not have been available to those who owned their home through a community title structure, because the NPA: (i) provided the grant’s objectives were to provide financial assistance to eligible owner-occupiers; (ii) on its proper construction, characterised eligible owner-occupiers as natural persons listed on the certificate of title of the property; (iii) provided that where applicable states should have regard to the existing requirements for policies to align definitions; (b) the discretion at paragraph 63 of the amended direction required changes to be: (i) necessary, not merely desirable, to ensure the proper administration and integrity of the grant; (ii) not inconsistent with the NPA; -- 4 of 17 -- 5 (c) the Tribunal failed to find the change to the amended direction was not ‘necessary’ in the requisite sense, and was inconsistent with the NPA. [16] Further the Tribunal failed to give adequate reasons for the exercise of the discretion. [17] In any event, the Commissioner states, any amendment could not form part of the same law applying to the original decision. Appeals in the Appeal Tribunal [18] The Commissioner seeks to appeal on a question of law only. [19] A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding.1 In deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the Tribunal for reconsideration.2 The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant’s favour.3 Additional evidence [20] On appeal the Commissioner sought to adduce additional evidence. Additional evidence may be permitted if all of the following requirements are satisfied: (a) The evidence could not have been obtained with reasonable diligence for use at the original hearing; (b) If given, the evidence would probably have an important influence on the result of the case (although it need not be decisive); and (c) The evidence is credible.4 [21] The Commissioner seeks to submit: (a) an affidavit of Alexander William Merritt filed 11 December 2023 exhibiting the original amended direction and declaring dates of subsequent versions of the grant direction; (b) ‘additional documents’, being other versions of the NPA as amended. [22] The Commissioner submits the affidavit should be admitted because: (a) evidence of the dates of subsequent versions of the grant direction was not made available to the Tribunal below because neither party had suggested a subsequent version applied to the proceeding; (b) the later versions have only now become important because the Tribunal sought to amend the direction without specifying how the amendments impact the later versions; 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(1) (‘QCAT Act’). 2 QCAT Act s 146. 3 Ericson v Queensland Building Services Authority [2013] QCA 391. 4 Pickering & Anor v McArthur [2010] QCA 341 [22]. -- 5 of 17 -- 6 (c) the affidavit clarifies the publication dates of amended versions and confirms the 2 July 2021 version applied to the original decision for the purposes of s 60(2)(b) of the FHOG Act. [23] The Commissioner submits the updated versions of the NPA should be admitted because: (a) the subsequent versions were not made available to the Tribunal because they made no changes to the clauses that were relevant to the proceeding below; (b) the subsequent versions are important to the appeal because the Commissioner intends to make submissions about the effects of certain clauses in the 2 July 2020 version of the Agreement, and intends to pre-empt suggestions that these submissions are invalidated by subsequent versions. Essentially the Commissioner intends to file them for completeness; (c) the subsequent versions are non-contentious between the parties. [24] Ms Phillips made no submissions in response to the application to adduce additional evidence. [25] Though the evidence could have been obtained in the original hearing, logically if neither party sought to make submissions about other versions of the grant direction or the NPA, there is no suggestion of an attempt to re-argue a point. It is true the Tribunal sought to amend the direction seemingly without considering the effect of that amendment on later versions. There is a possibility the other versions of the grant direction will influence the result of the proceeding. The same is true of the updated NPA versions. [26] The additional evidence is allowed. Submissions Appellant’s submissions [27] The Commissioner submits eight grounds of appeal, which resolve topically into three general grounds: (a) That the member below misunderstood the scope of the Tribunal’s review jurisdiction, or, alternately, the discretion was wrongly exercised (grounds 1-6 of the appeal submissions); (b) The member below did not provide adequate reasons (ground 7); (c) Any amendments to the amended direction could not form part of the law applying to the original decision by the Commissioner (ground 8). [28] The Commissioner submits grounds 1 to 6 involve an exercise of statutory interpretation of ss 25Q(3), 25R(1) and 58 to 60 of the FHOG Act and s 19(c) of the QCAT Act. [29] Section 59 of the FHOG Act gives the Tribunal jurisdiction to review the objection decision. The scope of that decision was only to confirm or set aside and substitute the original decision (FHOG Act s 57). QCAT’s scope of review mirrors that of the original decision-maker, meaning QCAT’s scope was also limited to these functions. -- 6 of 17 -- 7 [30] Section 25R(1) obliges the Commissioner to pay the grant, if it is payable. Section 25Q(3) sets out circumstances in which the grant is payable, relevantly: (a) the applicant…complies with the eligibility criteria for the grant under the home builder direction; and (b) the transaction for which the grant is sought is an eligible home builder transaction… [31] The ‘eligibility criteria’ at s 25Q(3)(a) are those set out in paragraphs 21-34 of the administrative direction, as amended. The relevant criterion is at paragraph 24, which states an applicant must be ‘the sole registered freehold owner of the property at the contract commencement date.’ [32] The definition of ‘eligible transaction’ is at paragraph 1 of the administrative direction. [33] Relevantly it states: c. a substantial renovation contract made by the freehold owner of a home in Queensland… [34] ‘Freehold’ is defined as ‘an estate in fee simple in land’. [35] It is uncontroversial that absent amendment to the administrative direction pursuant to paragraph 63 Ms Phillips did not meet the definition of freehold owner. She did not satisfy either definition (of eligible transaction or eligibility criteria) and was therefore ineligible for the grant. [36] Paragraph 63 of the administrative direction is neither a criterion nor a constituent element of an eligible transaction. For this reason the Commissioner was required to apply the criteria and definition of eligibility as they then were, not based on what they might become after amendment pursuant to paragraph 63. [37] The discretion at paragraph 63 was intended to be exercised in the general administration of Part 3B of the FHOG Act, not to be considered and potentially exercised at each application for a grant. [38] This interpretation of s 25Q(3) conforms with its ordinary meaning and also with the policy intention, the efficient administration of the grant. [39] The objection decision referred to paragraph 63, but nothing in that decision enlarges the Tribunal’s review jurisdiction, which was confined to the above. [40] Section 19(c) of the QCAT Act did not confer on the Tribunal all the Commissioner’s functions under the FHOG Act and administrative direction.5 The review jurisdiction was confined to functions ‘for the reviewable decision’. The discretion at paragraph 63 was not required to be considered in the making of the decision, meaning its exercise could not fall under the review jurisdiction. [41] As an alternative to this ground the appellant submits the discretion was wrongly exercised, as the NPA did not allow its exercise. Ms Phillips was not an ‘owner- occupier’ in the true sense of that term; her property, the unit, was in fact owned by Toorak Holdings Pty Ltd. The provisions of the NPA relied on by the member below 5 Saunders v Department of Communities [2011] QCAT 533 [11]. -- 7 of 17 -- 8 did not mandate the term ‘owner-occupier’ include a reference to someone holding a lease under company title. [42] The NPA left it open to the states and territories to decide whether to entitle a person with the relevant interest, an interest in a company’s shares (FHOG Act s 8(1)(h)), to payment of the grant. Contrary to the member’s assertion at paragraph [50] of the reasons below, there is no inconsistency between the administrative direction and the NPA. [43] Further, the discretion to amend was only to be exercised where ‘necessary’ to ensure the proper administration and integrity of the grant. This is a high threshold not met by mere optimisation or desirability. The NPA did not mandate the inclusion of the interest at s 8(1)(h) of the FHOG Act. The requirement applicants hold a fee simple interest simplified the grant requirements to ensure efficient administration. [44] Concerning ground 7, the Commissioner asserts the member below failed to provide adequate reasons, as it is unclear why the member sought to exercise the discretion, and specifically how the administrative direction was to be amended. [45] The member’s reasoning was: …Standing in the shoes of the Commissioner I exercise the discretion under paragraph 63 to include in the eligibility criteria of an applicant a person who has an interest of a kind allowed for in the provisions of s.8(1)(h) of the FHOG Act.6 [46] The appellant submits this leaves open a number of questions: (a) What paragraphs of the amended direction were affected by the amendments, and how were they affected? (b) Were additional provisions to be inserted into the administrative direction? (c) Would the amendments also affect the definition of eligible transaction at paragraph 1, distinct from the eligibility criteria at paragraphs 21-34? (d) Would the amendments affect later versions of the administrative direction? (e) When would the amendments take effect? (f) If the amendment was to recognise the interests at s 8(1)(h), why could it not also address the other types of relevant interest under s 8(1)? [47] The member’s failure to provide reasoning and answers to these questions is prejudicial to the Commissioner as the entity charged with administering the grant. The Tribunal was required to identify how the administrative direction was to be changed, and its failure to do so was an error. [48] Concerning ground 8, the Commissioner submits any amendments made to the administrative direction could not form part of the body of law at s 60(2)(b) of the FHOG Act which the Tribunal was required to apply in making the decision below. [49] Any variations made to the amended direction could not form part of the original administrative direction. A law with retrospective effect cannot be described as existing in the retrospective period to which it applies. As such the administrative 6 Phillips v Commissioner of State Revenue [2023] QCAT 426 [65]. -- 8 of 17 -- 9 direction referred to at s 25Q(3) of the FHOG Act, the version to be applied by the Tribunal, was the version approved on 2 July 2021. [50] The version applied in the decision below, being one the member purported to create by exercising the Commissioner’s power at paragraph 63 of the amended direction, was not the ‘version published on the department’s website’ per the FHOG Act’s definition of ‘home builder direction’.7 [51] The member overlooked this limitation on the Tribunal’s jurisdiction imposed by ss 25Q(3) and 60(2)(b) of the FHOG Act. [52] Based on these grounds the Appeal Tribunal should therefore allow the appeal and set aside the decision below. Respondent’s submissions [53] Counsel for Ms Phillips responded directly to the eight grounds as articulated by the Commissioner, though they were grouped somewhat differently. [54] Ms Phillips submits, regarding the scope of the Tribunal’s review jurisdiction (corresponding to the Commissioner’s grounds 1-3): (a) Section 19(c) of the QCAT Act grants the Tribunal all the functions of the decision-maker; (b) The Commissioner submits an exercise of paragraph 63 of the amended direction was beyond the Commissioner’s power and therefore beyond the Tribunal’s. Implicitly this means if the Commissioner had the power to exercise the discretion at paragraph 63 the Tribunal would also have it; (c) The Commissioner in fact had the power to exercise the discretion. [55] The Commissioner states the proper construction of ‘eligibility criteria’ is set out at paragraphs 21-34 of the administrative direction and the proper construction of ‘eligible home builder transaction’ is at paragraph 1. This excludes critical parts of the administrative direction without reason, ignores the principles of statutory interpretation and construction, and disregards the purpose of the Act and relevant statutory instruments. [56] The FHOG Act’s purpose, relating to the grant, is to provide for the administration of the grant in accordance with the NPA. The FHOG Act’s explanatory memorandum also provides the grant is administered in accordance with the NPA. Paragraph 63 advances this purpose by providing a mechanism to give effect to the eligibility criteria when the administrative direction fails to achieve this purpose. It was therefore necessary for the Commissioner to exercise the discretion under paragraph 63, in a circumstance where the direction failed to give effect to the criteria. [57] The Commissioner did in fact proceed on this basis and incorrectly decided not to proceed on the basis that the NPA excludes company title. [58] As to the necessity of exercising the discretion (corresponding to the Commissioner’s grounds 4-6), Ms Phillips submits: 7 FHOG Act, Schedule Dictionary, definition of ‘home builder direction’. -- 9 of 17 -- 10 (a) Section 20 of the QCAT Act establishes a review’s purpose is to produce the correct and preferable decision; (b) In grounds 4-6 the Commissioner submits the exercise of discretion was unnecessary and therefore paragraph 63 was not enlivened, because it excludes natural persons who own property through a community title structure, or alternatively it is a mere guideline; (c) The eligibility criteria in fact include persons who own their property in community title; (d) The Commissioner is not entitled to disregard the eligibility criteria in the NPA. [59] The Commissioner states Ms Phillips is not an owner-occupier ‘in the true sense of that term’ and posits Toorak Holdings Pty Ltd is the owner. [60] There is no basis to assert the NPA defines ‘owner’ as an owner of a direct freehold interest. At paragraph 13 of schedule A, and paragraph 1 of schedule B, it defines ownership by reference to the definitions in the FHOG Act for the purpose of the grant. [61] Section 8(1)(h) of the FHOG Act states one relevant interest is: …an interest in a company’s shares if the commissioner is satisfied that— (i) the interest entitles the holder of the interest to exclusive occupation of a specified home owned by the company; and (ii) the home was built before the holder of the interest acquired the interest or entered into an agreement to acquire the interest; and (iii) the value of the shares is not less than the value of the company’s interest in the home… [62] Ms Phillips has the required interest and occupies the property as her home. [63] Owners of a company title interest are eligible for the grant, and to the extent the administrative direction excludes owners of that interest it is inconsistent with the NPA. [64] The Commissioner argues schedules 1 and 2 of the NPA are merely guidelines, and any inconsistency between them and the administrative direction is not substantive. This contradicts both documents and the FHOG Act. [65] The NPA provides states and territories are responsible for ‘ensuring the integrity of HomeBuilder by taking reasonable steps to make sure that recipients meet the eligibility criteria set out in Schedule A, and by having regard to the implementation guidelines set out in Schedule B when designing their programs…’8 [66] The administrative direction states ‘State and Territory governments administer the grant…in accordance with the NPA’. The explanatory memorandum to the amendments to the Royalty Legislation Amendment Bill 2020 states: ‘The Australian Government provides funding for the payment of the grant. States and Territories will administer the grant on behalf of the Australian Government in accordance with the NPA’. 8 NPA paragraph 17. -- 10 of 17 -- 11 [67] The Commissioner is not entitled to disregard the eligibility criteria in the NPA particularly as the purpose of paragraph 63 of the administrative direction is to ensure compatibility with the NPA. Where the eligibility criteria are inconsistent with the Agreement a correction is required pursuant to paragraph 63 to ensure the proper administration of the grant. [68] Concerning ground 7, Ms Phillips submits the reasons were adequate. [69] The sole issue in dispute is whether Ms Phillips is entitled to the grant as a community title owner. The Commissioner conceded the member below provided sufficient reasons for why his determination was made. Ms Phillips submits this serves as a concession the reasons were sufficient. [70] The Commissioner submits the member needed to explain how the administrative direction was to be amended. This guidance was provided – the member stated the direction should be amended to include an interest of the kind allowed in the provisions of s 8(1)(h) of the FHOG Act. This was all that was necessary to resolve the issue in dispute. It was not necessary to determine the other issues framed as open questions by the Commissioner (at [46] of these reasons). [71] Concerning ground 8, the Commissioner asserted that if the direction as amended by the member below was enlivened, the resulting amendment would not form part of the same law that applied at the making of the original decision and therefore could not be applied by the member. [72] Ms Phillips disputes this on the basis that enlivening of the amended direction does not actually change the law. Paragraph 63 of the amended direction does not confer a general power to make laws. It provides a mechanism to correct any inconsistencies between the NPA and the administrative direction. The eligibility principles were established at the time of the original decision. [73] The Commissioner’s view is also discordant with the principles of construction and interpretation. The administrative direction’s purpose is to effect the eligibility criteria in the NPA. Paragraph 63 addresses this directly by providing a mechanism for amendment to correct inconsistencies with the NPA. It is illogical to suggest the inconsistency that enlivens the use of paragraph 63 cannot be corrected because paragraph 63 has been enlivened. Appellant’s reply [74] Concerning grounds 1-3, the Commissioner submitted the words ‘for the decision being reviewed’ at s 19 of the QCAT Act expressly limit the function of QCAT to those decisions that are for the decision being reviewed. The function at paragraph 63 of the administrative direction was not part of this statutory task. [75] The Commissioner did not in fact submit he did not have the power conferred by s 63. Rather, that power was outside the scope of the original and objection decisions. [76] Regarding Ms Phillips’ appeal to the purpose of the amending Act that introduced the FHOG Act, two observations must be made. [77] First, statutory construction is an interpretation of the words chosen by the legislature. Purpose is relevant but cannot override the language in fact chosen. Ms Phillips’ submissions do not engage with the text of the FHOG Act, QCAT Act, or the amended -- 11 of 17 -- 12 administrative direction. Second, the identified purpose says little about whether the Tribunal’s review jurisdiction encompasses the discretion of paragraph 63. [78] It does not follow from the purposes of the amending Act that the Commissioner had to consider paragraph 63. [79] The Tribunal is a Chapter III court. This tends against a suggestion that it has the jurisdiction to amend the administrative direction and thereby substantively affect the operation of the FHOG Act. [80] Concerning grounds 4-6, Ms Phillips’ submissions do not engage with the proposition that the NPA did not require the states and territories to ensure eligibility for the Home Builder Grant mirrored eligibility for the First Home Owner Grant. [81] The NPA was not intended to be a legally binding document. Its importance was to be referred to at s 68 of the FHOG Act (an irrelevant section for this decision). That was the context in which the Tribunal had to decide whether the amendment under paragraph 63 was necessary to ensure the proper administration and integrity of the grant (the precondition for the use of the paragraph 63 discretion). [82] ‘Owner-occupier’ is undefined in the NPA. It bears its ordinary meaning. Owner is unambiguous and refers to a holder of fee simple interest. A lease interest is the antithesis of ownership. Nothing in the NPA suggests otherwise. It is unlikely the parties to the NPA had a company title owner in mind, that being an anachronistic arrangement. [83] Paragraph 13 of schedule A only required regard be had to requirements for the First Home Owner Grant. Paragraph 1 of schedule B is concerned with procedural, not substantive, requirements and did not purport to affect the meaning of ‘owner- occupier’. [84] In administering the grant, each state and territory was to ‘make the necessary arrangements to administer HomeBuilder consistent with the terms, conditions, eligibility criteria and principles set out in Schedule A’. Schedule A was entitled ‘program guidelines’. It does not necessitate the recognition of company title. [85] If mere inconsistency was the precondition to exercise the paragraph 63 discretion, it would have stated this explicitly. In any event the administrative direction’s omission of an interest of the types at s 8(1)(h) of the FHOG Act did not render the direction inconsistent with the NPA. [86] Concerning ground 7, the member purported to amend only the eligibility criteria. According to the wording at [65] of the reasons below, the administrative direction’s definition of ‘eligible transaction’ remained the same. It was uncontroversial Ms Phillips’ building contract did not meet that definition, yet, without further explanation, the member below ordered payment of the grant. [87] Concerning ground 8, Ms Phillips’ distinction between a power to create new laws and to correct inconsistencies is without difference. In changing the direction the Tribunal also changed the eligibility criteria. Hearing [88] At the hearing the question was raised whether Ms Phillips had included the administrative direction in the scope of the review by asking, in her objection to the original decision, that the discretion at paragraph 63 be exercised. -- 12 of 17 -- 13 [89] The Commissioner’s legal representative stated under the statute, an applicant’s right was solely to apply for the grant. Compliance with the criteria in the administrative direction would entitle them to the grant. An applicant for the grant had no power to make a separate application for the Commissioner to exercise the paragraph 63 discretion. The Commissioner did not have the ability to exercise the discretion in an individual assessment of an application for the grant. Correspondingly there was no ability to exercise that discretion on review. [90] The Commissioner’s reasons for the objection decision stated: Your submissions indicate to me that you understand the eligibility requirements for the grant but desire an outcome that exceeds what the law can provide in this instance. Your submissions that the home builder direction is unfair, unjust, and discriminatory are matters of legislative policy and are therefore outside the scope of this objection. [91] The reasoning of the delegate of the Commissioner who made the decision is irrelevant as, no matter the reasoning, a decision to amend the direction was outside the scope of the decision. [92] The Commissioner further submitted the administrative direction had a legislative character and its amendment was essentially a legislative exercise, and QCAT as a Chapter III court was therefore incapable of amending it. [93] The phrase ‘for the decision being reviewed’ at section 19(c) of the QCAT Act restricted the scope of the Member’s jurisdiction on review to those determinations the Commissioner could make in deciding an objection. The paragraph 63 discretion was not something the Commissioner could exercise ‘for the decision being reviewed’ and should therefore not have been exercised on review. [94] Ms Phillips’ legal representative stated at the hearing that the NPA included company title, but the administrative direction did not. The purpose of paragraph 63 was to enable the Commissioner to eliminate this inconsistency and read the terms of the NPA into the direction. [95] It was submitted this is not a legislative exercise but a necessary step the Commissioner was required to take to make the direction consistent with the objects of the grant. [96] Specifically the amendment sought by Ms Phillips would be to amend paragraph 1(c) of the administrative direction to add into the eligibility criteria a substantial renovation contract ‘made by the freehold owner or owner in community title of a home’. [97] When asked why the Commissioner should have the power to make that amendment in a single instance, rather than as a permanent amendment to the direction, Ms Phillips’ representative submitted the Commissioner in fact had that broader remit, and this included the narrower remit of changing the direction in Ms Phillips’ case irrespective of the effect of such a change on other cases. [98] The Commissioner’s response to this point was that the paragraph 63 power is a power to change or vary the direction, not dispense with the existing direction, and this was what Ms Phillips effectively sought. -- 13 of 17 -- 14 [99] The Commissioner also submitted the criteria of the NPA did not have legal effect. The criteria in the administrative direction were properly drawn from the FHOG Act and those in the NPA were merely interpretational aids as to context and purpose. [100] The paragraph 63 power is analogous to a power in an executory agreement, and its exercise brings into effect a new instrument. This means the exercise of the discretion is effectively a legislative exercise (a version-creating exercise) and such an exercise cannot be retrospective and apply, in 2023, to a decision made in 2021. Consideration [101] Before embarking on a review of a decision it is necessary to outline the exact decision under review and the powers used to make that decision. The decision marks the boundaries of the review.9 Tribunal members reviewing a decision are subject to the same constraints as the original decision-maker. A member must address the same question the primary decision-maker was required to address and the question raised by statute determines the considerations that must or must not be taken into account.10 Jurisdiction to exercise the discretion at paragraph 63 [102] The first relevant question regarding the objection review was whether the Commissioner had jurisdiction to exercise the paragraph 63 discretion. The discretion’s purpose is to ‘ensure the proper administration and integrity of the [grant]’, provided no change makes the administrative direction inconsistent with the NPA, or to make the administrative direction consistent with the NPA where an inconsistency is found.11 [103] The discretion to amend is therefore not exercisable in making individual decisions as to whether to award the grant unless those decisions are affected by an inconsistency between the NPA and the administrative direction. [104] The administrative direction is not inconsistent with the NPA merely because the former excludes company title holders from claiming the grant.12 [105] The only eligibility requirements set out in the NPA are that persons be listed on the certificate of title and reside (or intend to reside) on the property. It otherwise delegates the question of eligibility to the states and territories.13 [106] Toorak Holdings Pty Ltd is the person listed on the certificate of title.14 [107] Ms Phillips seeks to imply her eligibility into the administrative direction by reference to the NPA’s overarching purpose. [108] Ms Phillips states ‘owner’ in the NPA can refer to a company title holder because the NPA refers to the FHOG Act’s definitions, which include company title ownership at s 8(1)(h). However, in describing its objectives the NPA does not say an ‘owner’ is eligible. It says: 9 Shi v Migration Agents Registration Authority (2008) 235 CLR 236 [133]. 10 Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 [51]. 11 Administrative direction effective 2 July 2021, paragraph 63, AB p 470. 12 Pennisi & Pennisi v Commissioner of State Revenue [2025] QCAT 327 [80]-[81]. 13 NPA cl 13, AB p 473. 14 AB p 348. -- 14 of 17 -- 15 (a) [The NPA’s objective is to] provide a framework to the parties to work co-operatively to support the residential construction industry through the Coronavirus crisis and build confidence in the sector over the short to medium term; and (b) provide financial assistance to eligible owner-occupiers with the intent of increasing residential construction activity…15 (emphasis mine) [109] The specification of ‘eligible’ at (b) indicates ownership alone does not confer eligibility. If that were the case the word would not have been inserted. The definition at s 8(1)(h) of the FHOG Act does not go to ‘eligibility’ but to ‘ownership’. The eligibility requirement is distinct from and qualifies the ownership requirement. Ms Phillips is an owner, but this does not confer eligibility. [110] Exclusion of company title holders does not contradict the NPA’s goal except in the broadest sense, given one of the NPA’s objectives is to support the residential construction industry. But the eligibility requirement is also part of the NPA’s objectives, so this argument to principle is ineffective. [111] I therefore find there is no contradiction between the NPA and the administrative direction. [112] The overarching goals of a particular legislative instrument cannot be used to interpret one of its provisions so as to change its explicit meaning16 – in this case, to effectively override an eligibility requirement for an owner-occupier. The eligibility criteria are designed to limit the application of the grant, ultimately ensuring its effectiveness. [113] Arguments against excluding a company title holder from the grant are ultimately policy arguments, not interpretative arguments. [114] I note ‘eligible home builder transaction’ in the FHOG Act ‘means an eligible transaction within the meaning of the home builder direction’ which further indicates the primacy of the eligibility criteria in the administrative direction over a more abstract principled approach drawn from the NPA’s objectives. Character of amendment [115] Would the exercise of the discretion create a new instrument, i.e. is it a legislative exercise, or is it merely an exercise of an administrative power? [116] If the administrative direction is a ‘statutory instrument’ as defined by the Statutory Instruments Act 1992 (Qld), then the paragraph 63 discretion could not be exercised on review to vary the version of the direction that applied to the original decision. [117] It has been said legislative exercises determine the content of rules of general, usually prospective, application, while administrative decisions apply those rules to particular cases.17 The distinction is often opaque, but in this circumstance, applying this distinction, the exercise of the paragraph 63 discretion is ultimately legislative. Ms Phillips’ purpose in seeking its exercise is to change the content of the applicable rule under the administrative direction such that she is considered eligible. The fact that 15 NPA cl 12, AB p 473. 16 Esso Australia Pty Ltd (t/as Esso) v Australian Workers Union (2017) 350 ALR 404 [52]. 17 RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185 [43]. -- 15 of 17 -- 16 the power to change the definition is granted by the administrative direction itself does not necessarily make it administrative in character. Its exercise involves a determination of the content of a rule to (subsequently) be applied, being the eligibility criteria. [118] In Vink v Commissioner of State Revenue,18 Member Sammon considered whether the administrative direction is a statutory instrument. Member Sammon stated: There is a good argument that the Administrative Direction is a ‘statutory instrument’ under the Statutory Instruments Act 1992 (Qld) (‘SIA’). It appears to me that the Administrative Direction is an instrument made under a power conferred by an Act, namely the [FHOG] Act, within s 7(2)(c) of the SIA - see the definition of ‘home builder direction’ contained in the Dictionary (the schedule) to the [FHOG] Act. Secondly, the Administrative Direction appears to me to be a ‘notification of a public nature’, under s 7(3) of the SIA since it notifies any member of the public about eligibility for the Grant, and, under the [FHOG] Act, is legally binding in nature.19 [119] Adopting this logic, Member Sammon considered the application of the discretion in context: [121] … On the assumption that the Administrative Direction is a ‘statutory instrument’ which makes the Administrative Direction part of the [FHOG] Act, the starting position is that amendment of the Administrative Direction does not affect a right or privilege acquired or accrued under the [FHOG] Act prior to the amendment of the Administrative Direction. [122] However, the effect of s 20 is always subject to being displaced by a contrary intention appearing in any Act. In my view, there is a ‘contrary intention’ to the otherwise effect of s 20 of the AIA [Acts Interpretation Act 1954 (Qld)], contained in s 60(2)(b) of the [FHOG] Act, that the Tribunal must decide their review of a decision on a grant ‘in accordance with the same law that applied to the making of the original decision’. In my opinion, s 60(2)(b) means the law that governs the criteria for the Grant, which is in the [FHOG] Act itself, rather than preserving the effect of s 20 of the AIA, which does not contain the criteria for the Grant. [120] In my view the same logic applies here. The discretion could not be exercised by the learned member below on 30 October 2023, the date of the decision below, to retrospectively vary the eligibility criteria that applied on 3 August 2021, the date of the objection decision. [121] That the administrative direction contained paragraph 63 at the time the original decision was made is irrelevant. The law that applied to the making of the objection decision was not a version of the administrative direction that could potentially have been amended by the exercise of the discretion, but the original version of the administrative direction that governed the grant criteria. The Tribunal below was therefore bound to use that version of the direction in reviewing the objection decision. 18 [2024] QCAT 448. 19 Ibid [121], footnote 49. -- 16 of 17 -- 17 [122] I concur with Member Sammon’s assessment above that the administrative direction constitutes a part of the FHOG Act. It is therefore inappropriate for the Tribunal, a Chapter III court, to amend the direction.20 [123] The Tribunal did not have jurisdiction to exercise the power at paragraph 63 of the administrative direction. Adequacy of amendment and reasons [124] Given the above, the appeal must succeed, and the question of whether the reasons were adequate is of lesser importance. The Commissioner’s concerns about the boundaries and timing of the amendment (at [43] of these reasons) are valid concerns, but their omission does not actually represent a failure to provide salient reasons. The concerns raised were not part of the process of thought that led the learned member to the conclusion he reached. Indeed the Commissioner’s concern is that they were ignored in the learned member’s reasoning, meaning that, rather than a failure to provide adequate reasons, their omission represented a failure to correctly characterise and address the question asked of the member. This makes the questions supplementary to the grounds of appeal already addressed. Orders [125] The decision in GAR676-21 made on 30 October 2023 is set aside and substituted with a decision that the application to review a decision filed 3 December 2021 is dismissed. [126] There are no orders as to costs. 20 Owen v Menzies [2013] 2 Qd R 327. -- 17 of 17 --