CAN CONVICTED CRIMINALS BE COMMITTEE MEMBERS?

For Bodies Corporate established by the Body Corporate and Community Management Act 1997, there are various rules and regulations that govern who can be a Committee member. Generally, Committee members will be lot owners or persons nominated by lot owners. But what happens if a lot owner, convicted of an indictable offence, wants to become a Committee member? The answer may surprise you.

Committee eligibility

Generally, Committee members will be lot owners or persons nominated by lot owners. Some people are ineligible to be voting Committee members. These people will usually fall into one of the following categories:

1. a body corporate manager, a service contractor, or a letting agent, or anyone associated with them;
2. a person, other than a letting agent for the Body Corporate, who conducts a letting agent business for the Body Corporate; or
3. a lot owner who owes a body corporate debt to the Body Corporate in relation to a lot or lots (e.g. unpaid levies), or anyone that lot owner nominates.

Missing from this list of ineligible people are those convicted of an indictable offence.

What are indictable offences?

Indictable offences are the most serious criminal offences that exist in the Criminal Code 1899. They are typically heard in the District Court or the Supreme Court of Queensland. A person charged with an indictable offence has the right to be tried before a jury. A person convicted of an indictable offence can be sentenced to a lengthy term of imprisonment.

Can persons convicted of an indictable offence be Committee members?

In Mt. Eliza [2001] QBCCMCmr 317, an adjudicator considered whether a person could be excluded from committee membership because they had a prior criminal conviction.

Under the (then) section 25(2)(e) of the Body Corporate and Community Management (Standard Module) Regulation 2008, a committee member’s position becomes vacant if the member “is convicted (whether or not a conviction is recorded) of an indictable offence.” The equivalent section still exists in the 2020 versions of regulation modules.

In the reasons for decision, the adjudicator stated:

” I agree with the applicant’s interpretation of the provisions of the Standard Module. Section 25(2)(e) only applies to a serving committee member, not to the nomination of a person for a committee position at a time after which that nominated person has been convicted of an indictable offence. In this scenario, owners are taken to be aware of the previous conviction of the nominated person, and to have taken this fact into account in determining whether or not to vote for the election of such person to the committee.”

LA Provence [2010] QBCCMCmr 109 involved an application to remove a chairperson because he had been convicted of an indictable offence. The chairperson initially denied the conviction, but the applicants produced a Certificate of Order certified on 21 August 2009 by the Clerk of the Magistrates Court at Southport. The certificate confirmed the chairperson had been convicted of an indictable offence after he was found guilty.

However, the adjudicator also found that:

“It should also be noted that this order does not affect Mr Dariush-Far’s eligibility to be a voting member of the committee. I am not aware of a legislative provision, and the Applicants have not referred to a specific provision, prescribing that a person eligible to be a voting member of the committee under section 10 of the Standard Module becomes ineligible to hold a committee position if the person is convicted of an indictable offence. It would seem a conviction only has an effect if the person is an existing member of the committee. There would appear to be nothing to suggest that a conviction prevents an eligible person from being elected or appointed as a member of a committee.”

In other words, the conviction for an indictable offence did not make the chairperson ineligible to be voted back onto the Committee at a later general meeting.

Final Comments

The problems with the decisions in Mt. Eliza and LA Provence ultimately stem from problems with the legislation itself.

The decision in Mt. Eliza assumes that when people nominate to be a Committee member they will disclose to other lot owners that they are convicted criminals as part of their nomination. However, the decision in LA Provence shows that people who are convicted criminals may choose not to volunteer this information, or even knowingly deny their criminal past.

It also seems bizarre that someone convicted of an indictable offence one day before they are voted onto the Committee may remain on the Committee, but the same person convicted one day after they are voted onto the Committee is automatically removed and their position becomes vacant.

Committees can wield substantial powers on behalf of lot owners and Bodies Corporate. The fact that the legislation allows those convicted of indictable offences to be Committee members, and wield those powers, is risky. Should a person convicted of serious dishonesty offences be a Treasurer for a Body Corporate? Should a person convicted of circulating abuse material online be allowed unfettered access to body corporate records, including CCTV footage of swimming pools where children and young people play?

If your Body Corporate requires further advice and assistance in relation to Committee membership or eligibility, please contact Mario Esera at HWL Ebsworth Lawyers.

Article contributed by Mario Esera, Partner, HWL Ebsworth Lawyers