Like many professionals, real estate agents may be required to disclose previous criminal offences.  Whether or not a person is obliged to disclose a past conviction depends on many factors, including the time period that has passed, the nature and seriousness of the offence and the penalty imposed.

Automatic ineligibility

A person must close a conviction for an offence which occurred in the last five years.  Disclosure of previous convictions does not automatically preclude you from obtaining a licence.  However, failure to disclose convictions may result in your licence being cancelled.  It is an offence to knowingly supply false or misleading information.

Section 34(1)(b) of the Property Occupations Act 2014 (Qld) states that a person is not a suitable person to hold a licence if they have been convicted of a serious offence in the last five years. 

A serious offence is defined as any of the following offences punishable by 3 or more years imprisonment:

• Offences involving fraud or dishonesty
• Trafficking in dangerous drugs
• An offence involving the use or threatened use of violence
• An offence of a sexual nature
• Extortion
• Arson; and
• Stalking

Duty to Disregard does not apply

Ordinarily, when a statutory authority is assessing a person’s fitness to be admitted to a profession, they have a “duty to disregard” once the rehabilitation period for the offence has expired (Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) (‘CLROA’) s 9).

For indictable offences, the ‘rehabilitation period’ is 10 years, commencing on the date the conviction was recorded.

Unfortunately, this duty to disregard does not apply when the person or authority is expressly required by law to have regard to the criminal history of the person to be assessed (CLROA s 9). This means that for real estate licence applications, the Office of Fair Trading is expressly required to consider the applicant’s ‘criminal history’ to determine their suitability (POA s 121(1)(g)).

Duty to Disclose

After the 10-year expiry period, a person can lawfully deny their conviction and is not required to disclose it (CLROA s 8). Importantly, this is subject to any responsibility to disclose their criminal history that is required, or construed to be required, by statute (CLROA s 4).

Applicants for real estate licences are required to provide “any information the chief executive (the Office of Fair Trading) reasonably requires to decide whether the applicant is a suitable person to hold a licence” (POA s 30(1)(f)).

Therefore, an applicant may well consider that they are required to disclosed a previous conviction even after the ten year rehabilitation period has passed.  This is an area of law that is complex and so if in any doubt you should obtain legal advice tailored to your specific situation.

Investigations into Criminal History

The Office of Fair Trading possesses the power to obtain a criminal history report from the Commissioner of the Queensland Police Service (POA s 40). However, the report is required to contain only the ‘criminal history’ in the Commissioner’s “possession” (POA s 40(4)).

If the offences occurred in Queensland and were committed within the past five years, it is most certain that the Commissioner would have access to and disclose an applicant’s criminal history upon the Office of Fair Trading’s request.

Definition of ‘Criminal History’

The POA does not define ‘criminal history’ in its provisions. For the purposes of disclosing criminal history reports in these circumstances, the Queensland Police Service adopts the following meaning of ‘criminal history’ (Police Service Administration Act 1990 (Qld) s 10.2AA; CLROA s 3):

“criminal history means, in relation to any person, the convictions recorded against that person in respect of offences.”

This article is general in nature and does not constitute legal advice. For legal advice specific to your situation. contact our team today.