Neil Sands
A new bill which prevents the real estate watchdog from imposing long bans on agents who refuse to complete compulsory cultural training is too narrow and fails to address core issues around freedom of speech involving other professional regulators, says the lawyer whose client prompted the legislation.
Brigitte Morten
Barrister Brigitte Morten represents Auckland estate agent Janet Dickson, who faces a five-year suspension because she declined to take a mandatory Māori studies CPD course, arguing it was irrelevant to her work, politically biased and in conflict with her personal beliefs.
Concerns about Dickson’s case led to Associate Justice Minister Nicole McKee introducing the Regulatory Systems (Occupational Regulation) Amendment Bill, which passed its third reading in Parliament last Friday.
McKee said the bill strips the Real Estate Agents Authority’s (REAA) power to impose “disproportionately harsh” five-year bans in cases like Dickson’s.
“It is out of step, out of proportion and can stop people from earning a living in their chosen profession. No other regulated profession has such a harsh penalty for failing to complete CPD,” she said, adding: “Separately to this bill, I have made it clear to the REAA that CPD requirements should be relevant to the job of a real estate agent.”
‘Automatic ban’
Morten welcomed the bill, which came after the High Court refused to order the REAA to drop its insistence that Dickson would face disqualification unless she did the training – a 90-minute course called Te Kākano (The Seed), which covers Māori cultural issues as part of a series on diversity and inclusion.
But the Wellington-based barrister, who is managing director at Franks Ogilvie and a member of The Law Association’s Public & Administrative Law Committee, said the legislation should have gone further.
“It basically treats the symptom, not the cause – the symptom being a draconian outcome where a licensed real estate agent would have a five-year ban …automatically, regardless of the reasons,” she told LawNews.
“What it doesn’t do is actually treat the cause. At the heart of this is Janet’s right to freedom of expression, freedom of speech, to not have to do compulsory CBD that is unrelated to the practice of being a real estate agent and conflicts with her own religious beliefs. That’s the issue we’ve been fighting about the entire way through, and that’s where the bill fails quite significantly.”
Morten said other professionals, such as nurses, had been subject to disciplinary proceedings for expressing views their regulator disagreed with.
“We’ve seen several cases of nurses who have put their personal views up – completely unrelated to their profession – on social media, and then faced disciplinary matters because of that,” she said. “We ‘re particularly concerned about those types of bodies imposing an ideological point of view which has nothing to do with a person’s ability to provide safe medical care.”
Focus on consumer protection
Morten’s colleague at Franks Ogilvie, Stephen Franks, faced a similar situation when a New Zealand Law Society (NZLS) standards committee found he was guilty of unsatisfactory conduct for sending a letter on his client’s behalf to healthcare practitioners, warning about the potential legal risks of prescribing gender-affirming medicines such as puberty blockers.
The committee’s finding came after six people, none of whom received the letter, complained to the NZLS that it was threatening, intimidating and amounted to bullying.
It was overturned earlier this year, when Legal Complaints Review Officer (LCRO) Fraser Goldsmith upheld the principle that lawyers have a professional duty to serve clients fearlessly and provide honest legal opinion, regardless of whether they personally agree with the client’s beliefs or objectives.
As a result, Franks Ogilvie has drafted proposed legislation, the Regulated Professions Neutrality Bill, which aims to rein in professional regulators.
Its aim “is to ensure that the regulatory bodies for professions focus their powers on consumer protection and do not misuse them to unnecessarily diminish their members’ freedom of conscience, expression, and belief”.
Morten said professional regulators have an important role and significant enforcement powers, which should not be wielded for ideological purposes.
“We understand the importance of having a regulator,” she said. “What has to be clear, though, is they need to regulate the practices that are actually going to keep consumers safe… It’s about bringing those regulators back to the core of what they exist for, which is the protection of consumers.”
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