QBCC license suspension or cancellation policy means that the QBCC can suspend or cancel a building license if the builder commits an indictable offence.
An “indictable offence” is one which has been classified as a crime, and proceedings will be prosecuted by way of an “indictment” and will be likely heard in either the Magistrates Court, District Court or the Supreme Court of Queensland.
This is because the QBCC have a fit and proper person test for people who hold a contractor’s license, and so being charged with an indictable offence is a breach of this fit and proper person requirement.
If you have been convicted of an indictable offence, then the QBCC may issue you with a “notice of reasons for proposed cancellation or suspension” – sometimes referred to as a “show cause notice”.
If you receive a show cause notice because of a conviction on an indictable offence, then it is vital that you contact a qualified solicitor today, or risk losing your building license and livelihood.
Our building and construction disputes lawyers will outline this process and highlight some of the relevant considerations in the case law that the QBCC and/or QCAT must consider.
If you are facing a QBCC licence suspension or cancellation for an indictable offence then it is vital that you contact experienced building and construction lawyers as soon as possible to help save your building license
CONTACT A CONSTRUCTION LAWYER TODAY
OR CALL: 1300 545 133 FOR A FREE PHONE CONSULTATION
QBCC Licence Suspension or Cancellation
Section 48(1)(c) of the Queensland Building and Construction Act 1991 (Qld) (“QBCC Act”) provides that the Queensland Building & Construction Commission may suspend or cancel a building licence if the licensee is convicted of an indictable offence. It says:
(1) The commission may suspend or cancel a licence if … (c) the licensee is convicted of an indictable offence or an offence that, if committed in Queensland, would be an indictable offence.
Section 31(1)(a) of the QBCC Act provides that a person is entitled to a contractor’s licence if the commission is, on application by that person, satisfied that the applicant is a fit and proper person to hold the licence. It says:
(1) A person (not being a company) is entitled to a contractor’s licence if the commission is, on application by that person, satisfied that … (a) the applicant is a fit and proper person to hold the licence
Section 31(3) of the QBCC Act provides that the commission may have regard to the following when deciding if a person is a fit and proper person to hold a contractor’s licence:
- commercial and other dealings in which that person has been involved and the standard of honesty and integrity demonstrated in those dealings; and
- any failure by that person to carry out commercial or statutory obligations and the reasons for the failure; and
- tier 1 defective work carried out by the person, whether or not the person received a notice under section 67AH , 67AI , 67AL or 67AM stating a term of ban for the work; and
- if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act—whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order; and
- if the person holds or has held an interstate or New Zealand licence—whether the licence has been suspended or cancelled; and
- any other relevant factor.
Whether or not there should be a cancellation of a building license is said to involve a two-step process. The first step is that there must be an occurrence qualifying under section 48 of the QBCC Act. For the purpose of this article, section 48(1)(c) – being convicted of an indictable offence.
Then, if it is determined that the builder is not a fit and proper person to hold a building license, the QBCC must then exercise its discretion as to whether or not the building licence should be cancelled, in accordance with the matters contained in 31(3) of the QBCC Act and the relevant case law.
Fit and Proper Person Test to Hold a QBCC License
In the matter of Bloomfield v Queensland Building and Construction Commission; Roofshield Restorations v Queensland Building & Construction Commission [2014] QCAT 293, Member Walker considered the decision of Pop v QBSA [2008] QCAT 388, where Member Byrne concluded that:
power to grant or withhold a licence is protected, and there is no element of punishment Involved
The QBSA submissions went on to indicate that the primary consideration is the protection of the persons with whom the licensee might deal, primarily consumers which is a submission Member Byrne adopted.
In the matter of Queensland Building and Construction Commission v Bloomfield & Anor [2015] QCATA 19, Senior Member Stilgoe OAM also states that
… it therefore seems uncontroversial that, if a tribunal is to cancel a person’s licence because of a conviction, the conviction must affect the person’s honesty, knowledge or ability within the profession or discipline. It must be considered within the context of the activities in which the licensee is engaged. The tribunal must also consider whether the conduct is likely to recur or whether the general community can have confidence that the behaviour will not recur.
Senior Member Stilgoe OAM then referred to the decision of Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28 in referencing the meaning of a ‘fit and proper person’:
The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability; “Honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it.
In the matter of Zangara v Queensland Building and Construction Commission [2018] QCAT 52, a licence holder who was convicted of 19 drug-related indictable offences was found to be a fit and proper person to hold a contractor’s licence. In reaching his decision that the respondent was a fit and proper person, Member Olding considered the following:
Further, the issue for determination is not whether Mr Zangara is a fit and proper person in the abstract. It is whether he is a fit and proper person to hold a contractor’s licence. Aside from the drug-related transactions, there is no evidence relevant to any “commercial and other dealings” in which Mr Zangara has been involved to suggest any concern with his standard of honesty and integrity in such dealings. His integrity is also supported by references. This factor weighs in favour of Mr Zangara being a fit and proper person.
In the case of Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321, Toohey and Gaudron JJ said in relation to a ‘fit and proper person’ at [36]:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.
In Amour v Queensland Building Services Authority [2012] QCAT 360 the Tribunal refer to the case of Dougdale Holdings Pty Ltd v Builders Licensing Board of New South Wales (Unreported, District Court of New South Wales, 11 December 1973), Goran J, when speaking of the fit and proper person test in the NSW Act said:
A fit and proper person to hold a licence to build, in my view, is a person who is responsible in his intention and those projected intentions, that is projected into the performance of them; that he is so to speak a stable person upon whom the customer could depend and that he is the sort of person who the Board, in its wisdom, having looked at him in the context of the building trade and industry as a whole, would regard as the sort of person who could be entrusted with projects on behalf of prospective customers who have to pay for his services.
The cases have given us a lot of direction in relation to what type of conduct will be counted in relation to you receiving a QBCC licence suspension or cancellation, and what type of conduct will not.
Our construction lawyers will explain the tools you can use to keep your license.
The Purpose and Objects of the QBCC Act
The objects and purpose of the QBCC Act will determine the scope and context of how someone is a fit and proper person to be a contractor and to hold a building licence.
Section 3 of the QBCC Act states:
The objects of this Act are—
(a) to regulate the building industry—
(i) to ensure the maintenance of proper standards in the industry; and
(ii) to achieve a reasonable balance between the interests of building contractors and consumers; and
(b) to provide remedies for defective building work; and
(c) to provide support, education and advice for those who undertake building work and consumers; and
(d) to regulate domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners; and
(e) to regulate building products to ensure—
(i) the safety of consumers and the public generally; and
(ii) persons involved in the production, supply or installation of building products are held responsible for the safety of the products and their use; and
(f) to provide for the proper, efficient and effective management of the commission in the performance of its functions.
One of the purposes of the QBCC Act is the regulation of the building industry to ensure the maintenance of proper standards in the industry and achieving a reasonable balance between the interests of building contractors and consumers.
No Prior Infringements or Disciplinary Action
If you have not had any infringements or disciplinary action recorded on your licence and this offence is your first offence, then this is a factor which the QBCC or QCAT will consider supporting that the builder is a fit and proper person to hold a licence.
In the matter of Zangara v Queensland Building and Construction Commission [2018] QCAT 52, this is a factor which Member Olding considered supported that the respondent in that matter was a fit and proper person to hold a licence. Member Olding said at [51] to [52]:
… Mr Zangara has taken positive steps to overcome his addiction and modify his conduct. His clinical psychologist assesses his risk of re-offending as low. He has served approximately 18 months of his sentence without being found to have breached parole conditions. He has not been charged with or convicted of any other offences … Additionally, Mr Zangara has an otherwise unblemished record in the construction industry. Having regard to the factors outlined in the previous paragraph, the community could have a high degree of confidence that the offending conduct will not re-occur.
TIP – obtain a police check from the National Police Certificate website and submit it with your show cause response as evidence of your low or no criminal history.
Offence did not Involve a Consumer
If the offence has nothing to do with the builder’s work or business as a builder, and did not involve a consumer, then the builder may be able to argue this.
In the decision of Bloomfield v Queensland Building and Construction Commission; Roofshield Restorations v Queensland Building & Construction Commission [2014] QCAT 293, Member Walker considered the fact that the offence did not involve a consumer was a factor which supported that the respondent was a fit and proper person to hold a contractor’s licence. Member Walker said at [23] to [24]:
Based upon the sentencing remarks of Justice Deardon and on the Reports provided, I find that the risk is certainly very low. Indeed, the sole evidence appears to indicate that this was a one-off offence that did not involve a consumer. While explanations involving the commission of offences could rarely be described as satisfactory here there is simply no evidence from which I would be prepared to conclude that consumers involved in commercial dealings with Mr Bloomfield are any way at risk … In conclusion I am unable to accept that the matter of the conviction alone is sufficient to justify a decision to cancel Mr Bloomfield’s Licence.
It is also beneficial to try to obtain expert reports showing the builder is at a low risk or reoffending.
Expert Reports Showing Low Risk
In the matter of Zangara v Queensland Building and Construction Commission [2018] QCAT 52, Member Olding considered the evidence of the Respondent’s psychologist in determining that the Respondent was a fit and proper person to hold a licence.
Since his arrest, Mr Zangara has attended numerous sessions over an extended period, both before and after his sentencing, with a clinical psychologist, Dr Carl Steindl, who assesses his risk of re-offending as low … Mr Zangara has taken positive steps to overcome his addiction and modify his conduct. His clinical psychologist assesses his risk of re-offending as low … The decision of the Queensland Building and Construction Commission dated 11 May 2017 to cancel the Applicant’s contractor licence is set aside.
TIP – book in to see a psychologist and ask them to provide you with a report which outlines your remorse and assess your likelihood of reoffending and submit this with your QBCC documents.
The Situation is a One-Off and Unlikely to Arise Again
In Queensland Building and Construction Commission v Bloomfield & Anor [2015] QCATA 19, Senior Member Stilgoe OAM said at [32]:
This case arises from a very particular set of circumstances which are unlikely to occur again. As I have already mentioned, the Act does provide a penalty for providing false and misleading information to the QBCC. Intent is relevant. If there had been positive evidence of wilful or reckless disregard for the truth of the declaration, then, perhaps, QBCC would have taken action under s 108C, which would have sent a significant and serious warning to the industry.
Senior Member Stilgoe OAM then goes on to say at [35]:
The tribunal must also consider whether the conduct is likely to recur or whether the general community can have confidence that the behaviour will not recur.
Following this it may be that a party can argue that if the indictable offence is one which arose “from a very particular set of circumstances which are unlikely to occur again”, then this can assist with keeping the builder’s license if faced with a QBCC licence suspension or cancellation.
How to Keep your Building License
If you are involved in a QBCC licence suspension or cancellation matter, the builder should be able to successfully argue that if the builder has done/shown the following, then it may be considered by the QBCC.
- If the incident occurred a while ago with no reoffending by the builder since then; and/or
- If there have been no further incidents with the person / persons who were involved in the indictable offence (assault, for example); and/or
- If you can make an argument that the builder is not a threat to any member of the public or their consumers and the incident was simply a one-off incident; and/or
- The builder obtains good character references to support the fact that the builder has a good history, and the likelihood of the builder reoffending.
Practical Tips of Keeping your Building License
If you have been arrested on an indictable offence, there are some things that you can start doing immediately to better your chances of keeping your building license.
These include the following.
Drug and/or Alcohol
If the matter is a drug or alcohol-related offence, stay clean & sober and ask the Court for drug and/or alcohol diversion.
QBCC licence suspension or cancellation may not be relevant to drug or alcohol offences.
Get drug & alcohol tested so that you can prove to the QBCC or QCAT that you have taken this indictable offence seriously.
Carry Out Commercial or Statutory Obligations
You should ensure that you have carried out all of your commercial or statutory obligations pursuant to section 31(3)(b) of the QBCC Act.
If there are building works left incomplete or defective, then complete them and/or rectify the defects – and just ensure that you are compliant with all of your commercial or statutory obligations.
Tier 1 Defective Work
You should ensure that any tier 1 defective work is rectified pursuant to section 31(3)(c) of the QBCC Act. This is so whether or not you have received a notice under section 67AH , 67AI , 67AL or 67AM.
The QBCC define tier 1 defective work to be building works which:
- adversely affects the structural performance of a building to the extent that a person could not reasonably be expected to use the building for the purpose for which it was, or is being, erected or constructed (i.e., requires substantial reconstruction or demolition), or
- is likely to cause the death of or grievous bodily harm to a person (e.g., fire protection not up to safety standard).
If there are any tier 1 defects, then it is vital that you engage a building and construction lawyer.
Builder is an Enforcement Debtor
If you are an enforcement debtor under a judgment or money order pursuant to section 31(3)(d) of the QBCC Act, then this will need to be paid or seek to set-aside/appeal the judgment and stay the enforcement of the judgment or money order.
Reports and Assessments
Book in with a psychologist and get a psychological report in relation to your remorse for committing the indictable offence, your understanding that the offence was wrong, and also your likelihood of reoffending.
Get character statements from people that you know (the more senior the better). If you have legal professionals in your family or friends, or police officers, or other professional people – then get them to give statements vouching for you are a good person.
Do not Reoffend
This is obvious, but you must ensure that you do not reoffend. In general, you should not offend at all anyway, but especially if you face losing your license.
Keep a clean criminal record from the date of the indictable offence to the date of the hearing or response to QBCC. Get a police check from the National Police Certificate website to prove that you have not reoffended.
Get a Good Criminal Lawyer
As above, the law states that a builder will lose their licenses if they are “convicted” of an “indictable offence” or an offence that, if committed in Queensland, “would be an indictable offence”.
If you get a good criminal lawyer, and you make this issue known to them, then they might be able to:
- Do something so you are not “convicted” of the offence; and/or
- Do something so that you are convicted of an offence which is not an “indictable offence”.
We are not criminal lawyers, but this could involve making a plea deal with the prosecution, or get you a ‘not guilty’ verdict.
We refer our criminal matters to Ken Mackenzie from Mackenzie Mitchell Solicitors in Brisbane or Chelsea Emery & Associates on the Sunshine Coast. Alternatively, you can try to find a criminal lawyer on the QLS website.
QBCC Licence Suspension / Cancellation
As above, it is vital that you seek both criminal advice and construction advice from suitable qualified solicitors.
I know that this sounds expensive, but the financial risk of losing your ability to make a living is far greater.
If you are facing a QBCC licence suspension or cancellation, then contact our building and constructions lawyers today.
If you are facing a QBCC licence suspension or cancellation for an indictable offence then it is vital that you contact experienced building and construction lawyers as soon as possible to help save your building license
CONTACT A CONSTRUCTION LAWYER TODAY
OR CALL: 1300 545 133 FOR A FREE PHONE CONSULTATION
