By Anna Longdill
Application for judicial review of decisions made by Real Estate Agents Authority, Associate Minister of Justice and Registrar of licensed real estate agents relating to mandatory CPD course Te Kākano – validity of Real Estate Agents (Continuing Professional Development Rules) Notice 2018 – validity of Authority’s decision to make Te Kākano mandatory – consistency with right to freedom of expression – validity of registrar’s refusal to grant Dickson an exemption from completing Te Kākano
Dickson v Real Estate Agents Authority [2025] NZHC 50 per McQueen J
In 2018, the Real Estate Agents Authority, with the approval of the Associate Minister of Justice (responsible for the administration of the Real Estate Agents Act 2008), created the Real Estate Agents (Continuing Professional Development Rules) Notice 2018 (the practice rules). The associate minister approved the practice rules in November 2018, and they were published by notice in the Gazette.
The practice rules require a licensee to complete a total of 20 hours of continuing professional development (CPD) in each calendar year, consisting of 10 hours of “non-verifiable CPD” and 10 hours of “verifiable CPD”. Verifiable CPD means CPD delivered by an approved provider, made up of one or more mandatory topics as specified by the Authority and one or more elective topics chosen by the licensee from the Authority’s website CPD library.
In 2023, the Authority directed that a newly developed course, Te Kākano, was a mandatory course for the CPD year, which would need to be completed by 31 December 2023. Te Kākano (which took 90 minutes to complete) was described on the Authority’s website as a “practical introduction to Māori culture, language (te reo), custom (tikanga) and te Tiriti o Waitangi (the Treaty of Waitangi) in the real estate context”.
Janet Dickson, an experienced real estate agent, chose not to complete Te Kākano as a matter of principle, as she considered that it would not add any value to the performance of her real estate agency work. She and said course conflicted with her personal beliefs (in particular, references to Māori gods sitting uncomfortably with her own monotheistic Christian beliefs) .
Dickson has a background knowledge and understanding of te reo Māori, the treaty and Māori and treaty history (including through growing up with a prominent Māori priest as a “father figure” and completing School Certificate in te reo Māori).
In November 2023, Dickson applied to the registrar of licensed real estate agents for an exemption from completing Te Kākano. The registrar declined her application, on the basis that it did not meet the threshold of “exceptional circumstances” as set out in published exemption guidelines dated 30 October 2023.
The decision letter of 7 December 2023 reminded Dickson she still had time to complete Te Kākano by 31 December 2023 and that if she did not, the Authority would be required to cancel her real estate licence under s 54 of the Act.
Under s 54, the Authority is required to cancel a real estate agent’s licence if he or she does not complete CPD requirements. A licensee whose licence is cancelled becomes ineligible to hold a real estate licence for the following five years.
Dickson commenced a judicial review claim against the Authority, the registrar and the Associate Minister of Justice. By consent, interim orders were made prohibiting the Authority from cancelling Dickson’s licence for failure to complete Te Kākano or from declining to renew any application for renewal of her licence, pending the final determination of the judicial review application.
Dickson also applied to the Real Estate Agents Disciplinary Tribunal for a review of the registrar’s decision declining her application for an exemption. That application was stayed pending the determination of the judicial review proceedings.
Dickson’s judicial review challenged: (a) the validity of the practice rules themselves; (b) the validity of the Authority’s decision to mandate Te Kākano; (c) the legality of the registrar’s decision to decline to grant her an exemption from completing Te Kākano.
Applicable principles: Real Estate Agents Act 2008, ss 3, 4, 12, 15, 16, 17, 54; Real Estate Agents (Continuing Professional Development Rules) Notice 2018; New Zealand Bill of Rights Act 1990, ss 13, 14 – is the requirement to complete “verifiable CPD” ultra vires the Act? (no, s 15 should be interpreted broadly, Parliament intended for the associate minister to have a high-level role while it is for the Authority to play the part of the expert regulator setting specific courses for licensees to complete. It is not practical for the associate minister to approve each mandatory CPD topic for each year) – approach to interpretation of s 15(1)(a) and (b) (they are disjunctive, and the Authority validly made the Practice Rules under s 15(1)(b)) – did the Associate Minister abdicate their authority in approving the practice rules? (no, practice rules cannot be seen as ultra vires for lack of ministerial oversight. The Act envisages high-level oversight) – was the Authority’s decision to mandate Te Kākano illegal, made for an improper purpose or inconsistent with the right of freedom of expression? (no, within scope of practice rules, mandating Te Kākano falls within the purposes of the Act and no reasonable prospect that it restricted the right to freedom of expression) – was the registrar’s refusal to grant an exemption invalid? (no, this is premised on a factually incorrect allegation that registrar applied a generic no-exemption policy for Te Kākano)
Held: The application for judicial review is dismissed.
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