QLD Applying old legislation, but not the exemptions

Discussion in 'Other/General Law Forum' started by Rebecca SCHAFFERIUS, 2 December 2018.

  1. Rebecca SCHAFFERIUS

    2 December 2018
    Likes Received:
    Good Afternoon

    Firstly, thank you for taking the time to read this information.

    To summarise: I am seeking any case law that pertains to changes in legislation whereby the government has made a decision based on old legislation, but not afforded a subject the other rights due in the same section of legislation generally afforded to an individual.

    The example:

    Registered builder (individual) ordered building products for a job from suppliers who he had many dealings with in order to fulfill a very big job. The client ended up going belly up, leaving the builder with product but no job. As a result, on the 16th day of April 2014, the individual entered into a Part IX Agreement under the Bankruptcy Act 1966 (the Relevant Event) in order to ensure that his suppliers received the money that they were entitled to. The builder continued to operate, allegedly unaware that notification should be made re: the relevant act. Some time later, the builder applied for a separate licence entitlement. When filling out the form, the builder declared the relevant act.

    The original legislation (up to 01.07.2015) provided that anyone who entered into a Part IX Agreement under the Bankruptcy Act 1966 was considered an excluded individual for a period of 5 years. However, the original legislation afforded the excluded individual to apply to be a permitted individual and to continue operating. After 01.07.2015, legislation changed and the time limit as an excluded individual was brought down to three years. Also, the ability to apply to become a permitted individual was removed.

    As a result, the builder was informed that the legislation at the time of the relevant act (section 56AC of the QBCC) made him an excluded individual for a period of five (5) years from the date of the Relevant Event (the Original Decision) being from 16 April 2014 to 15 April 2019, meaning he could no longer operate his business until that date.

    Despite applying the legislation in force the time of the relevant event, the QBCC does not consider that the individual is entitled to apply to be categorised as a permitted individual for the relevant event, an option which the legislation at that time provided for.

    Please note, that there are no other issues pertaining to this builder, nor his operating methods. There have been no complaints from his clients etc. The builder has applied through QCAT to challenge decisions and has come to the final appeals process with QCAT in which he retains his licence while going through the process.

    As stated above. QCAT have decided that the legislation applied at the time and date of the relevant act should be applied, however any other legislation pertaining to rights to operate removed.

    Seeking your professional assistance in any information, case law or rights that can be afforded to this individual in this circumstance.
  2. Rob Legat - SBPL

    LawTap Verified

    16 February 2017
    Likes Received:
    I can’t point you to any case law, but as to general principles of legislative construction and logic:

    - at the time the Part IX was entered, the application was available - but was not taken up;
    - once the application was taken away by the change in legislation, it disappears unless there is a transitional arrangement in place. Odds are, however, there was possibly a time limit involved which has since passed; and
    - the legislation is not ‘being applied now’, it was applied at the time.

    Merely by way of analogy to explain: it’s a bit like having a shopper docket special offer. The offer is only good for a certain period of time from when you get the receipt. Now they’re not printing that offer on the dockets anymore. You can’t go back and demand they give you the expired deal.
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