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)
16.021