In an article Peter Moran of Colin Biggers & Paisley
wrote for Realcover in July, he asked the question: Are you a fit and proper person?
He used case studies decided by the NSW Civil and Administrative Tribunal (NCAT) to illustrate the different types of criminal conviction that would render a person not "fit and proper" to hold a real estate agent’s licence.
Since then, a case held before NCAT has offered further insight. In this article, Peter discusses what factors are taken into account – and how the "fit and proper person” requirement is considered – in cases involving a serious criminal offence.
Serious crime conviction
In 2012, an applicant for a real estate agent's licence was involved in an incident with her then partner.
It resulted in her being charged with, and ultimately convicted of, causing grievous bodily harm with intent.
The applicant pleaded guilty to the charge and in mid-2014 was sentenced to five years imprisonment with a non-parole period of 2.5 years.
The Sentencing Judge found that she and the former partner had been in a volatile relationship characterised at times by excessive alcohol use.
Additionally, the Judge found the applicant herself had been the subject of domestic violence at the hands of the former partner, and in other relationships.
Although the maximum penalty for the offence was 25 years the Judge found there were valid reasons for departing from the standard non-parole period. Her guilty plea, prior good conduct, her minimal risk to the community in the future, her need for continuing treatment in the community and her psychological condition at the time of the offence all helped reduce her "moral culpability".
The applicant applied to the Commissioner for a Certificate of Registration under the Property, Stock and Business Agents Act 2002. It was refused because the applicant was not deemed to be a “fit and proper person”. The Commissioner referenced the nature of the offence, the severity of the sentence imposed and the fact that the applicant was on parole until 2019.
The agent was able to keep her registration (after initial refusal to grant a certificate by the Commissioner for Fair Trading, Department of Finance, Services and Innovation).
On appeal, the Tribunal found there was little chance of the applicant engaging in similar conduct as that for which she was earlier convicted.
Subsequently, it overturned the Commissioner's decision and granted a licence, albeit with conditions attached.
If you find you are facing a criminal charge and are worried about losing your licence to operate as an agent:
Accept full responsibility for any offending conduct when faced with licence cancellation. Be frank with the Commissioner and (if it gets that far) with the Tribunal
Demonstrate remorse or understanding of the impropriety of the conduct
Produce evidence to support your good behaviour and conduct subsequent to the committing of the offence
Put forward evidence as to your knowledge, honesty and ability to perform the tasks required of a licensed real estate agent and operate in a manner that will ensure the public is protected