Abraham v Queensland Building and Construction Commission [2018] QCAT 349

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Abraham v Queensland Building and Construction Commission [2018] QCAT 349 PARTIES: BENJAMIN SHANE ABRAHAM (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO: GAR041-18 MATTER TYPE: General administrative review matters DELIVERED ON: 16 October 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: The decision made by the Queensland Building and Construction Commission on 19 January 2018 that Benjamin Shan Abraham is an excluded individual is confirmed. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – OTHER MATTERS – whether applicant is an excluded individual – where relevant bankruptcy event occurred prior to exclusion period being reduced from five years to three years – effect of transitional provisions Acts Interpretation Act 1954 (Qld), s 20 Professional Engineers and Other Legislation Amendment Act 2014 (Qld) Queensland Building and Construction Commission Act 1991 (Qld), s 56AC, s 56AF, Schedule 1 Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld) D’Arro v Queensland Building and Construction Commission [2017] QCA 90 REPRESENTATION: Applicant: Self-represented Respondent: D McNulty -- 1 of 5 -- 2 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] On 19 January 2018, the Queensland Building and Construction Commission (the QBCC) decided that Mr Abraham was an excluded individual as defined in s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act). [2] On 25 January 2018, Mr Abraham lodged an application to review that decision with the Tribunal. Factual background [3] The factual background to this matter is not in dispute: (a) On 16 April 2014, Mr Abraham entered into a Part IX agreement under the Bankruptcy Act 1966 (Cth). (b) On 3 January 2018, the QBCC gave Mr Abraham a written notice stating that it considered him to be an excluded individual. Legislative framework [4] At the time Mr Abraham entered into the Part IX arrangement, s 56AC of the QBCC Act relevantly provided: Excluded individuals and excluded companies (1) This section applies to an individual if – (a) after the commencement of this section, the individual takes advantage of the laws of bankruptcy or becomes bankrupt (relevant bankruptcy event); and (b) 5 years have not elapsed since the relevant bankruptcy event happened. … (3) If this section applies to an individual because of subsection (1), the individual is an excluded individual for the relevant bankruptcy event. [5] Section 56AF of the QBCC Act set out a procedure to be followed in the event that the QBCC considered an individual to be an excluded individual. Subsections (1) and (2) provided: Procedure if licensee is excluded individual (1) This section applies if the commission considers that an individual who is a licensee is an excluded individual for a relevant event. (2) The commission must give the individual a written notice identifying the relevant event and stating the following— -- 2 of 5 -- 3 (a) why the commission considers the individual is an excluded individual for the relevant event; (b) that the individual may make a submission to the commission about the relevant event within the reply period; (c) the circumstances, stated in subsection (3), in which the commission must cancel the individual’s licence. [6] Sections 56AC and 56AF of the QBCC Act were amended by the Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld) (the Amendment Act), which commenced on 1 July 2015. Relevantly, the only amendment to the above extracts was that the five year period in s 56AC(1)(b) was changed to three years. [7] The Amendment Act inserted Part 11 into Schedule 1 of the QBCC Act, which relevantly included s 57(1): Categorisation as excluded individual or permanently excluded individual continues (1) An individual who, immediately before the commencement, was an excluded individual for a relevant bankruptcy or company event under former section 56AC continues to be an excluded individual for the relevant bankruptcy or company event under former section 56AC as if that section had not been amended by the Amendment Act. Note— The individual would continue under former section 56AC to be an excluded individual until 5 years had elapsed from the day the relevant bankruptcy or company event happened. [8] Also inserted into Schedule 1 was s 58, which relevantly provides: Becoming a permitted individual after the commencement (1) Subsection (2) applies if— (a) the commission gave an individual a written notice under former section 56AF(2) before the commencement; and (b) at the commencement, 28 days have not elapsed from the day the commission gave the person the notice mentioned in paragraph (a). (2) The person may apply to the commission, and the commission may consider and decide the application, under former section 56AD, as if that section had not been repealed under the Amendment Act. The Court of Appeal’s decision in D’Arro [9] The Court of Appeal considered earlier amendments to s 56AC of the QBCC Act made by the Professional Engineers and Other Legislation Amendment Act 2014 -- 3 of 5 -- 4 (Qld) (the PEOLA Act) in D’Arro v Queensland Building and Construction Commission (D’Arro).1 [10] Fraser JA (with whom Philippides JA and Mullins J agreed) stated: [29] In order to consider whether the PEOLA Act would operate retrospectively if the amendments were applied in the Tribunal it is necessary first to consider the relevant liability or other consequence of the operation of the QBCC Act that would be affected … [30] The circumstance that an evaluative decision that an individual is an excluded individual is required before those sections operate in a way that affects the individual’s licence status … make it difficult to accept the respondent’s argument that s 56AC(3) and s 56AC(4) themselves operate upon the date of a relevant event to create a liability or other adverse consequence that would fall within s 20 of the Acts Interpretation Act. The better view is that sections 56AC(3) and 56AC(4) merely use the expression “excluded individual” as a shorthand description of an individual who, within the preceding five years, took advantage of the bankruptcy laws or became bankrupt in accordance with s 56AC(1) or has the specified relationship with a company to which a liquidator was appointed or was affected by other specified actions in accordance with s 56AC(2). Any relevant liability or thing suffered is instead created by a subsequent cancellation of a licence or refusal of an application for a licence consequent upon a decision by the respondent that an individual is an excluded individual. [31] The application of the amendments made by the PEOLA Act would operate retrospectively if they changed the applicant’s licence status as it was at a time before that Act was enacted … [33] It might be said that the statutory description of the applicant as an excluded individual disadvantaged the applicant in the sense that any licence he held might be cancelled and any application for a licence he might make would be refused, but until such an event occurred the disadvantage should not be regarded as an accrued liability or a completed transaction. Consideration [11] Immediately prior to the commencement of the Amendment Act on 1 July 2015, Mr Abraham was a person to whom s 56AC(1) of the QBCC Act applied. However, no evaluative decision was taken by the QBCC that Mr Abraham was an excluded individual prior to the commencement of the Amendment Act. [12] Applying the reasoning of the Court of Appeal in D’Arro to this case, s 56AC(3) did not operate itself upon the date of a relevant bankruptcy event to create a liability or other consequence that would fall within s 20 of the Acts Interpretation Act 1954 (Qld). The liability or thing suffered would be created by the subsequent cancellation of a licence or refusal of an application for a licence flowing from a decision of the QBCC that a person was an excluded individual. The consequence is that it is the amended provisions which apply to Mr Abraham on review. [13] However, unlike in D’Arro, the amended provisions which are to be applied in this case include s 57(1) of Part 11 of Schedule 1 to the QBCC Act. The effect of this 1 [2017] QCA 90. -- 4 of 5 -- 5 provision is to preserve the operation of the former s 56AC as if it had not been amended in respect of persons in respect of whom a relevant bankruptcy event took place within the five years immediately prior to 1 July 2015. This category of persons includes Mr Abraham. [14] For completeness, the effect of s 58(1)(a) of Part 11 of Schedule 1 to the QBCC Act is that Mr Abraham cannot apply to become a permitted individual because he was not given notice under s 56AF until after the commencement of the Amendment Act. [15] As the QBCC carried out the procedure in s 56AF within five years of the relevant bankruptcy event on 16 April 2014, the Tribunal has no discretion but to confirm the decision that Mr Abraham is an excluded individual. -- 5 of 5 --