10 December 2015

Real Estate: Domb v. Real Estate Agents Authority

The Real Estate Agents Authority can demand those working in real estate  authorise access to more than their criminal conviction record.  Other information held by police can be relevant in deciding whether a person is “fit and proper” to hold a licence.
In a test case, the High Court was asked to rule on the extent of police inquiries necessary to establish if applicants satisfy the “fit and proper” test as part of annual relicensing in real estate.  Agents took exception to the wide-ranging power demanded by the Authority to access a record of their criminal history; not only their criminal record but also any interaction with the police.  This, they said, was an abuse of power and went beyond what was needed to weed out bad behaviour.  Disclosure of crimes involving dishonesty were relevant they said, but not driving offences.
The Real Estate Agents Act is consumer protection legislation.  It bars any person convicted of a dishonesty offence is the previous ten years, or convicted of specified Fair Trading Act offences in the last five years.
Justice Collins ruled the Authority could demand access to more than applicants’ convictions.  It was also entitled to details of both charges pending and discharges without conviction where the offence recorded is relevant to questions of being a “fit and proper” person.
His Honour said applicants are still entitled to the benefit of the Clean Slate Act: offences more than seven years old need not be disclosed provided no jail term was imposed for that offence,  there has been no further offending in the subsequent seven year period and any fines or reparations ordered have been paid.
Domb v. Real Estate Agents Authority – High Court (10.12.15)

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