The Real Estate Agents Authority decided that all agents should complete compulsory training in Māori culture, language, and te Tiriti o Waitangi. The course was intended to assist agents to understand and serve a diverse population, and in particular to equip them to serve Māori clients. Because this was a mandatory component of continuing professional development requirements, any agent who failed to complete the training—a 90 minute, online module called Te Kākano—would have their licence cancelled and would become ineligible for registration for five years.
Janet Dickson objected to this requirement and refused to take the course. She believed that it “would not add any value” to her work as a real estate agent and that it would conflict with her “life long ethical and religious convictions”. She applied for an exemption from the requirement, which can be granted in “exceptional circumstances”. The Registrar considered that this ground was not satisfied and declined her application. By the end of 2023, Dickson had not completed Te Kākano which, in the absence of an exemption, triggered a legal obligation to cancel her licence.
Dickson applied for a review of the Registrar’s decision by the Real Estate Agents Disciplinary Tribunal. That review was stayed pending resolution of the judicial review proceedings in the High Court which she launched at the same time.
Dickson’s High Court case involved three main arguments: that imposing mandatory CPD requirements was invalid under the relevant Act; that the decision to make Te Kākano mandatory was also invalid; and that the Registrar should have granted her application for an exemption.
(1) Was imposing mandatory CPD requirements invalid?
Agents’ CPD requirements were imposed by Practice Rules, a form of delegated legislation, which were to be developed after consultation with the relevant Minister. He or she decided whether to approve the rules in accordance with statutory criteria. The Practice Rules that were approved following this process said the Authority could specify “mandatory topics” that agents must complete.
Dickson’s argument under this heading was essentially that the Practice Rules approved by the Minister were deficient because they left it up to the Authority to determine the topics. However, McQueen J concluded that the legislation meant the Minister to have a “high-level role” and the Authority, as the “expert regulator”, to decide the specific courses required. The alternative—requiring the Minister to be consulted on and to approve mandatory topics—would create a “high administrative burden”.
Dickson argued that the nature and level of the penalties involved—which the judge described as “admittedly harsh”—also required that the Minister should approve topics, in order to avoid “distorting” the regulatory scheme. McQueen J disagreed, noting that this was a consequence of Parliament’s decision to specify a significant penalty for non-completion of CPD. This outcome did not mean that specifics of courses needed to be specified in secondary legislation. The Authority avoided distortion simply by communicating the penalty clearly to agents.
Dickson also argued that the Minister did not consider the necessary statutory criteria when approving the Practice Rules. In fact, the argument was that the Minister could not “have regard” to those criteria without knowing what the topics of CPD would be. McQueen J disagreed, again saying that the Act envisages a high-level role for the Minister, and that the number of hours of CPD were clearly specified and this was sufficient for him or her to consider the statutory criteria as required.
(2) Was making Te Kākano mandatory illegal?
Dickson argued that specifying Te Kākano as mandatory CPD was too specific—the Act only allowed the Authority to specify topics, not individual courses—and therefore illegal. McQueen J disagreed, saying that “topic” can extend to include specific matters, and that the Authority as the expert regulator had the necessary knowledge to “prescribed specified topics”.
Dickson then argued that the decision was ultra vires (outside the scope of) the authorising legislation, because it was “not necessary to protect consumers” and “not relevant to core real estate business.” McQueen J disagreed, saying that these are matters which the Minister must consider when approving Practice Rules, but there is no requirement on the Authority to consider them when setting CPD requirements. Topics need not be “necessary” to protect consumers; there must only be a “nexus” linking agents’ work with the compulsory topics. All that was required was that compulsory topics “promote and protect the interests of real estate consumers and should promote public confidence”. Te Kākano met these requirements, “through increasing the ability of licensees to deal appropriately and professionally with Māori consumers.”
Lastly, Dickson also argued under this heading that mandating Te Kākano breached her right to freedom of expression because it was “one-sided” and “did not enable discussion and debate” because it was “a pre-recorded online webinar”. The right to freedom of expression is found in section 14 of the New Zealand Bill of Rights Act, which provides that “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”
As a decision-maker exercising a statutory power, the Authority was required to “turn [its] mind to and engage with the question of whether it is reasonable to limit any affected rights by [its] decisions” (citing A v Minister of Internal Affairs). Further, citing New Health NZ v Director-General of Health:
[S]tatutory decision makers must, before exercising a discretionary decision-making power that might restrict a right protected under the [New Zealand Bill of Rights Act], consider whether the decision is a demonstrably justified restriction of the right in terms of s5 of the Act and only go forward with the decision if they can, themselves, be satisfied that it is a justified restriction—if they do go forward with the decision, they must explain to those affected why it is a justified limit on the right.
In fact, McQueen J considered that “there was no reasonable prospect that mandating Te Kākano would restrict ... freedom of expression and so there was no duty on the Authority to turn its mind to the question of whether it was reasonable to restrict it.” This was because freedom of expression “is principally a negative right: its function is largely to obligate the state to refrain from unjustifiably restricting expression”.
Here, the Authority was not limiting anyone’s expression or their ability to receive or share contrary opinions. It was “simply asking licensees to receive information in a professional context”. Dickson remained “free to hold her own views about the matters discussed in Te Kākano”, and the judge considered she had demonstrated her ability to do so by various public comments. McQueen J considered that Dickson’s “position appears to imply that s 14 encompasses the right not to be required to listen to views the listener does not agree with. Such an approach would extend s 14 of the Bill of Rights Act well beyond its intended scope.”
(3) Should the Registrar have granted an exemption?
Dickson argued that the Authority had decided there would be no exemptions granted in relation to Te Kākano, and that this was illegal. But McQueen J found this was “factually incorrect”, saying it was clear no such policy existed.
Dickson also argued that, as the failure to grant an exemption implicated her freedom of conscience—because “references to Māori gods sit uncomfortably with her own monotheistic Christian belief”—the Registrar should have taken this into account when considering her exemption application. McQueen J held, though, that whether or not this constituted the kind of “exceptional reasons” that would justify an exemption was the role of the Tribunal, to which Dickson had already applied to review the Registrar’s decision.
Conclusion
Dickson’s application for judicial review was dismissed in its entirety, leaving her to pursue review of the exemption decision in the Tribunal.
Dickson v Real Estate Agents Authority [2025] NZHC50
