In this matter, Crow J considered whether the definition of a “construction company” in Part 3A of the Queensland Building and Construction Commission Act 1991, and in particular the reference in that definition to a company that carries out building work services “in this or another State”, extended to a company that had at all material times carried out building work wholly in another State. Crow J gave the words “in this or another State” their plain and ordinary meaning and held that the definition did so extend. His Honour also rejected an argument that the relevant provisions were constitutionally invalid for infringing the rule against extra-territorial regulation of conduct in another State.
31 August 2018
In January 2018, Midson Construction (NSW) Pty Ltd (“Midson NSW”) was placed into liquidation. . Midson NSW had not, at any relevant time, carried out building work, or building work services in Queensland. . The first applicant, Midson Construction (Qld) Pty Ltd (“Midson QLD”) shared a common director with Midson NSW. .
As a consequence of Midson NSW being placed into liquidation, the Queensland Building and Construction Commission proposed, among other things, to cancel the applicants’ (including Midson QLD’s) licence. . The applicants filed an originating application in the Supreme Court of Queensland seeking various declarations, injunctive relief, and judicial review. .
The two key issues were whether Midson NSW was a construction company within the meaning of s 56AC of the Queensland Building and Construction Commission Act 1991 (“QBCC Act”) and, if it were, whether s 56AC of the QBCC Act was constitutionally invalid. . A third ground regarding an ineffective delegation of power was raised, but ultimately rejected. , -.
Section 56AC is the “key definitional provision” in Part 3A of the QBCC Act. . The “definitional provisions are machinery provisions which allow the Commission to cancel a builder’s licence”. . Section 56AC, broadly speaking, applies to individuals who have been directors, secretaries, or “influential persons” of a “construction company” that is wound up or ordered to be wound up. . It also applies to other construction companies that are not wound up if an individual who was a director, secretary or influential person of a construction company that has been wound up is also a director, secretary, or influential person of the other company. . Pursuant to s 56AC(7), a “construction company”:
“(a) means a company that directly or indirectly carries out building work or building work services in this or another State; and
(b) includes a company that, within 2 years immediately before a relevant company event for the company, directly or indirectly carries out building work or building work services in this or another State.” . (emphasis added)
The applicants argued that this definition did not apply to a construction company, like Midson NSW, which carries out building work, or building work services, wholly in another State. . In other words, the applicants argued that the definition was confined to a company which undertakes activities with respect to buildings constructed on land in Queensland. .
Crow J ultimately rejected this argument. His Honour considered that meaning needed to be given to every word, including the words “or another” in s 56AC(7). . His Honour stated:
“The ordinary literal meaning of the words ‘or another’ in s 56AC(7)(a) and (b) means that the definition of construction company is extended not only to a company that directly or indirectly carries out building work in Queensland, but also to a company that directly or indirectly carries out building work or building work services in another State, such as, in this case, New South Wales.” .
His Honour also considered that this literal construction was supported by the purpose of the QBCC Act. . His Honour said:
“It would seem plain that in order to fulfil its purpose in protecting consumers of building work or building work services in Queensland, Parliament considered it important to protect Queensland consumers from interstate individuals who go bankrupt, and interstate companies which are placed in liquidation.” .
The applicants also argued that if the construction ultimately adopted by Crow J were correct, then 56AC would be constitutionally invalid for purporting to regulate conduct in another State, offending the rule against the extraterritorial regulation of another jurisdiction. . However, the “difficulty with the applicants’ submission” was that the QBCC Act did not purport to regulate the conduct of building work in any other State, rather the QBCC Act attempted to “control, for the benefit of Queensland consumers, building work services within the State of Queensland”. . Crow J explained that “[t]here is no novelty in the legislator selecting whatever factum as a trigger of a particular legislative consequence”. .
In the result, his Honour concluded that s 56C of the QBCC Act was constitutionally valid. . The application was dismissed. .