An Act will not offend the presumption against retrospective operation

The case confirms that an Act will not offend the presumption against retrospective operation if it has future consequences for events which had occurred before the enactment, provided that the Act does not otherwise alter any rights or liabilities which the law had defined by reference to past events.

Facts

Mr D'Arro, the applicant (builder) together with four associated companies operated a design and construction business. The builder and the company which handled construction were each licensed under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).

In 2009, liquidators were appointed to each of the four companies. In 2010 the builder was made bankrupt.

Because of these events the respondent, Queensland Building and Construction Commission (QBCC), decided that the builder was an 'excluded individual' pursuant to section 56AC of the QBCC Act. As a result of being considered an 'excluded individual' for these multiple relevant events, the builder fell under the definition of a 'permanently excluded individual' for the purposes of the QBCC Act, and thus was precluded from being granted any further licences by the QBCC.

The builder applied to be categorised as a 'permitted individual' for each of those relevant events, so that he would not be considered an 'excluded individual' for these events. The QBCC refused his application. The builder applied to the Queensland Civil and Administrative Tribunal (QCAT) to review the QBCC's decision.

After the hearing, but prior to the decision being handed down, the QBCC Act was amended. Relevantly, the amendments provided that an individual who is an 'excluded individual' for a relevant event does not also become an excluded individual for another relevant event if the QBCC is satisfied that both events were consequences flowing from what was, in substance, the one set of circumstances. If this was the case, the QBCC was permitted under the amendments to categorise an individual as a 'permitted individual' in relation to the relevant excluding event.

The builder argued that, as both the insolvency of his companies and his personal bankruptcy arose from the same set of circumstances, the amendments operated to preclude him from being categorised as a 'permanently excluded individual', and allowed the QBCC to classify him as a 'permitted individual' for the relevant events. The QBCC argued that the application of the amendments to the QBCC Act in QCAT would give the legislation amending the QBCC Act retrospective operation because the QBCC Act (in the form prior to the amendments) operated upon the date of each relevant event to categorise the builder as an excluded individual, thereby creating a liability in the builder which could not be retrospectively changed by the operation of the amendments.

Despite the amendments, QCAT confirmed both of the QBCC's decisions. The builder appealed to QCAT's Appeal Tribunal. Although noting that the member erred in several respects, the Appeal Tribunal rejected the builder's contention that the QCAT at first instance erred in law by failing to apply the amendments made to the QBCC Act, as opposed to the QBCC Act as it was at the commencement of the matter. The builder appealed to the Court of Appeal.

Decision

The court allowed the builder's appeal, and ordered that the matter be remitted to QCAT for reconsideration in accordance with the amendments to the QBCC Act. It was noted by the court that because QCAT was deciding de novo, ie reviewing the decision by way of a fresh hearing on the merits, the law as it then existed is applied, not the law as it existed at an earlier time. Accordingly, the question was whether the amendments made to the QBCC Act did not form part of that law to be applied by QCAT in a de novo review of the QBCC's decisions because the amendments were not expressed to operate retrospectively.

The court stated that the amendments would only operate retrospectively if they changed the builder's licence status as it was at a time before the amendments were enacted. Simply because the amendments applied with reference to events that had occurred before the enactment of the amendment did not mean they applied in the circumstances so as to confer, impose, or otherwise affect rights or liabilities which the law had defined by reference to past events.

The court noted that simply being classified as an 'excluded individual' under the QBCC Act did not, of itself, create any liabilities in relation to the builder. Any relevant liability was created by the subsequent cancellation of the builder's licence, or a refusal to grant a further licence, consequent upon the decision that the builder was an 'excluded individual' which was not the case here.

Accordingly, QCAT ought to have considered the amendments in reviewing the QBCC's decisions de novo.