QBCC's Oversight Powers
What information can the QBCC request?
The Commissioner may, by written notice, request the following information and/or documents to be provided:
- trust records required to be kept;
- the Project Trust Contract or Retention Trust Contract;
- information about amounts deposited into, or withdrawn from, a trust account;
- details of the financial institution at which a trust account is help;
- information that enables the Commissioner to contact the beneficiaries of a Project Trust or Retention Trust;
- the details of an account at a financial institution into which a beneficiary of a Project Trust or Retention Trust is to be paid amounts from a trust account;
- other information the Commissioner reasonably considers necessary to exercise the Commissioner’s powers under the BIFA or to investigate an entity’s compliance with the BIFA.
The information and/or documents cannot be required to be given in less than 5 business days after the notice is given to the entity (compliance period).
The entity must give the information to the Commissioner within the compliance period (max penalty: 100 PU ($13,785)).
The Commissioner can request the above information from:
- the trustee for a Project Trust or Retention Trust;
- a beneficiary for a Project Trust or Retention Trust;
- a person that was a trustee or beneficiary of a Project Trust or Retention Trust;
- an entity that has taken control of the financial affairs of a trustee or beneficiary of a Project Trust or Retention Trust;
- a financial institution;
- a registered company auditor; or
- another person the Commissioner believes has information about a Project Trust or Retention Trust.
What directions can the QBCC give?
The Commissioner may, by written notice, give the trustee a direction that:
- an amount cannot be withdrawn from a stated trust account without the Commissioner’s written approval; or
- the trustee give the Commissioner an Account Review Report for one or more trust accounts for the trustee.
The direction must:
- state that it has been made under s53B of the BIFA;
- include the name of the account, name of the financial institution where the account is kept, and the BSB and account number for the account to which the direction relates;
- state the period which the direction must be complied with; and
- state the reason for giving the direction.
The Commissioner must give a copy of the direction to the relevant financial institution and may end or withdraw the direction at any time by giving written notice of the matter to each entity that was given the direction or a copy of the direction.
The trustee must comply with the direction within the period stated in the notice unless the direction is withdrawn (max penalty: 100 PU ($13,785)).
When can the Commissioner give a direction?
The Commissioner can give a direction set out above only in certain circumstances:
- Project Trust Contract or Retention Trust Contract is terminated;
- contracted party for the Project Trust Contract or Retention Trust Contract becomes an insolvent under administration within the meaning of the Corporations Act 2001, section 9;
- the Commissioner reasonably suspects a Project Trust Account or Retention Trust Account is not being used as required under the BIFA or is being used in a way that is inconsistent with the BIFA;
- for a trustee that is a licensee under the Queensland Building and Construction Commission Act 1991:
- trustee’s licence is suspended or cancelled; or
- trustee does not satisfy the minimum financial requirements under the QBCC Act.
Can the Commissioner get help?
The Commissioner may apply to the Supreme Court for directions about an amount held in trust for a Project Trust or Retention Trust.
If so, a copy of the application must be served on all beneficiaries, i.e. all head contractor beneficiaries and all subcontractor beneficiaries, for the Project Trust or Retention Trust unless otherwise directed by the Supreme Court.
The Commissioner may appoint a special investigator i.e. an appropriately qualified person, for one or more trust accounts.
A special investigator may investigate a person’s compliance with chapter 2 of the BIFA by:
- inspecting trust records or another record relating to a trust account;
- preparing or constructing incomplete trust records for a trust account;
- performing accounting tasks to establish the state of a trust account;
- reporting to the Commissioner about the state of a trust account or a trustee’s compliance with the BIFA;
- requiring a financial institution or trustee to give copies of, or access to, documents relevant to trust accounts or money deposited into trust accounts;
- requesting a person to give copies of, or access to, documents relevant to any person’s compliance with chapter 2 of the BIFA;
- carrying out another function, or exercising another power, prescribed by regulation.
Other matters regarding Special Investigators
A special investigator holds office subject to any conditions stated in the investigator’s instrument of appointment, including any limitations on the exercise of a power. If a special investigator is appointed for a trust account, the Commissioner must give the trustee for the account a notice stating the terms of the appointment and the investigator’s functions and powers.
Before exercising any powers, a special investigator must produce the investigator’s instrument of appointment for the person’s inspection.
If the special investigation by a special investigator establishes that a person has contravened a provision of the BIFA, the Commissioner may recover the cost of the investigation, as a debt, from the person.
The office of a person appointed as a special investigator ends if any of the following happens:
- the term of office stated in a condition of office ends;
- under another condition of office, the office ends;
- the investigator resigns by signed notice given to the Commissioner.
It is an offence to obstruct a special investigator, or someone assisting a special investigator, unless the person has a reasonable excuse (max penalty: 100 PU ($13,785)). If a person has obstructed a special investigator, or a person helping a special investigator, and the special investigator decides to proceed with the exercise of that power, it is required to warn the person that:
- it is an offence to cause an obstruction, unless the person has a reasonable excuse; and
- the investigator considers the person’s conduct an obstruction.
However, if the obstruction constitutes an assault, the special investigator does not need to give the above warning.
A person must not impersonate a special investigator (max penalty: 40 PU ($5,514)).
Last updated: 1 January 2022