The Queensland Building and Construction Commission
The Queensland Building and Construction Commission (QBCC) is responsible for licensing Queensland Builders, Contractors, QBCC dispute resolution and Certifiers. The Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) and the Queensland Building and Construction Commission Regulation 2003 (QBCC Regulation) are the two primary sources of legislation which regulates the building industry in Queensland.
It achieves this by ensuring the maintenance of proper standards in the industry and by achieving a reasonable balance between the interests of building contractors and consumers, among other things.[1]
All Builders who carry out, undertake or cause building work, either domestically or commercially in Queensland, must be licensed under the QBCC Act. Licenses issued by the QBCC fall into one of the following categories; Contractor, Fire Protection, Nominee Supervisor and Site Supervisor. The license may authorise the licensee to carry out all classes of building work or only apply to one or more classes specified in the license.
The holder of a license must meet all of the following requirements:
- Be a fit and proper person to hold the license.
- Possess the qualifications and experience required by regulation in relation to a license of the relevant class.
- Satisfy the relevant financial requirements.
- Can lawfully work in Queensland.
- Have paid the appropriate annual license fee.
- Does not fall into one of the exclusions under the QBCC Act.
If the QBCC is not satisfied that the applicant meets all of these requirements, their license may be cancelled or suspended. This decision is reviewable by the Queensland Civil and Administrative Tribunal (QCAT).
What is an Excluded Individual?
To promote public confidence in QBCC’s licensing system, a number of provisions have been inserted into the QBCC Act which prevent those responsible for poor financial management from working within the building industry. If the QBCC Act deems someone to be an excluded person, they may face a ban of either 3 years, 5 years or a lifetime ban, depending upon the circumstances.
A person will be considered an excluded person if they take advantage of the laws of Bankruptcy or becomes bankrupt, and 3 years have not elapsed since the event (This is referred to as the relevant bankruptcy or insolvency event). A person may also be considered an excluded person if they were a Director, Secretary, or ‘Influential Person’ of a construction company who goes through a relevant company bankruptcy or insolvency event. This occurs when the company is wound up, ordered to be wound up, or a provisional liquidator, liquidator, administrator or controller is appointed, for the benefit of a creditor.
A ‘Construction Company’ is defined in the QBCC Act as a company that directly or indirectly carries out building work or building work services. An ‘Influential Person’ for a company is an individual, other than a director or secretary, who is in a position to control or substantially influence the conduct of the company’s affairs. These definitions are made to be intentionally broad to be inclusive of wide number of companies and people. If you are unsure as to whether you fall into one of these definitions, you should seek legal advice from one of our experienced commercial and building solicitors.
What is the outcome of an Excluded Individual?
If a person is deemed an excluded person, they will not be able to hold a QBCC Contractor or Nominee Supervisor License, or be a Director, Secretary, or Influential Person of a Construction Company. The excluded individual will not be permitted to reapply for another license until their exclusion period has ended. If the relevant Insolvency or Bankruptcy Event occurred prior to 1 July 2015, the exclusion period is 5 years from the date of the event. If the relevant Insolvency or Bankruptcy Event occurs after 1 July 2015, the exclusion period is 3 years from the date of the event. If someone who has been deemed an excluded individual for a relevant Insolvency or Bankruptcy Event on two separate occasions, that person will be deemed a ‘Permanently Excluded Individual’ under the QBCC Act, and will face a lifetime exclusion period.
Excluded Company
A construction company will become an excluded company if it is involved in a Bankruptcy or Insolvency Event. If this occurs, any individual who is a director, secretary or influential person within that company at the time of exclusion, or within the period of 1 year immediately prior to that event, will be automatically deemed an ‘excluded person’. The QBCC dispute resolution team will then take steps to cancel existing licenses of both the company and any excluded individuals.
A Construction Company may also become an Excluded Company if an Excluded Individual is a Director, Secretary or Influential Person for that company. The QBCC dispute resolution team will then allow for a total of 28 days for the identified excluded person to be removed from the company. If this does not occur, the QBCC will revoke the company’s license.
Permitted Person
To become a permitted person, it must be proved that they took all reasonable steps to avoid the causes of the relevant event. This does not apply to insolvency events that occurred prior to 1 July 2015. This will not be able to be proved if the excluded person has failed to:
- Keep proper books of account and financial records;
- Seek appropriate financial or legal advice before entering into financial or business arrangements or conducting business;
- Report fraud or theft to the police;
- Ensure guarantees provided were covered by sufficient assets to cover the liability under the guarantees
- put into place appropriate credit management for amounts owing and taking reasonable steps for recovery of the amounts; or,
- Make appropriate provision for Commonwealth and State taxation debts.[2]
Conclusion
To become a permitted individual can be a difficult task and requires informative and current legal advice. A person can seek an internal review of the QBCC’s finding, that they are an excluded individual or excluded company. The alternative to this approach is an application to QCAT for a ‘merits review’ of the QBCC’s decision. Some cases may even require an application to the Supreme Court of Queensland for a ‘judicial review’, which is authorised by the Judicial Review Act 1991 (Qld).
A merits reviews through QCAT is taken to be from the point of view of the QBCC decision maker who then hears the matter on its merits based on the facts and evidences presented before making a final decision. A judicial review only considers the lawfulness of the decision and the decision making-process.
This article has been provided as an insight into the complex issues surrounding QBCC decisions and is not intended to be all inclusive, or substituted for professional legal advice. If you have had your license cancelled or suspended, or have been deemed an excluded individual and are seeking to have the decision reviewed at QCAT, then you should seek legal advice from construction lawyers in Brisbane. Our Director, Len Watt, has spent 25 years in the Building and Construction Industry and is an experienced and highly competent Building and Construction Law Practitioner. Contact our office today for a consultation.
[1] The Queensland Building and Construction Commission Act 1991 (Qld) s 3.
[2] https://www.qbcc.qld.gov.au/sites/default/files/Excluded_individuals_and_companies.pdf
