A win that wasn’t
A Court of Appeal decision has implications for the police vetting of licensed real estate agents.
The Real Estate Agents Authority’s police-vetting process has suffered another blow, this time with a Court of Appeal victory.
Luke Domb, who is a licensed agent working for Leaders Real Estate, won his case in 2015 in the High Court.
He had challenged the authority’s police-vetting process, which helps determine whether a person is ‘‘fit and proper’’ to hold an agent’s licence.
The registrar appealed, saying she could lawfully insist on vetting, and saying the High Court decision was wrong to set boundaries on what information she could require because in doing so it set inappropriate limits on information gathering and what was relevant to her assessment.
The Court of Appeal agreed and ruled the relevant legislation did not authorise the specific limits set in the High Court, so on paper the registrar won the appeal.
But in practice, the registrar’s case was lost because the court took a narrower view of her powers than either the Real Estate Agents Disciplinary Tribunal or the High Court.
It said the registrar could require that an applicant authorise disclosure of their criminal history, and make other specific inquiries of the police to elicit information that she reasonably considered relevant to her decision on whether the agent is fit to hold a licence.
However, ‘‘The registrar may not ask or require agents to sign the police-vetting form as a matter of course,’’ the decision said.
‘‘If she thinks routine vetting is necessary, she should ask the legislature to amend the act.’’
Domb believes the registrar overstepped her authority by insisting on police vetting.
When renewing his annual licence in 2013 he refused to sign the form. The registrar responded that she could not be satisfied he was a fit and proper person. He then submitted on a ‘‘without prejudice’’ basis and his licence was granted. There is no dispute about his fitness to hold a licence.
The REAA has been approached for comment.