Minister tells Real Estate Authority CPD requirements did not meet her expectations

Te Kākano (The Seed) not relevant to real estate professionals

On 13 July 2023, LawNews published my article “Lessons for lawyers from the regulation of real estate agents.” I published a modified version on my Substack, here. Introducing my Substack, I said:

This is a modified version of an article written for lawyers, published by the Auckland District Law Society (now named Law Association of New Zealand)’s LawNews on13 Jul 2023, under the heading Lessons for lawyers from the regulation of real estate agents. The original article can be found here. It included, “The point is not that a real estate professional should not take Te Kākano (the Seed) if she wants to. The point is that the REAA demands that the real estate professional do so, or she will not be permitted to work in her chosen field. I am publishing my LawNews article again now on Thoughts from the North because what I warned of has happened. Real Estate professionals have had their licences cancelled. One of them is Janet Dickson whose story is told here. Her licence has been cancelled because she refused to take the course.

Dickson took the Real Estate Authority, the Registrar and the Associate Justice Minister to Court. She claimed that actions of the Authority were unlawful and that her cancelled licence should be restored to her. Her case was heard by the High Court on 18 June 2024. The hearing lasted only a day, but it has taken High Court Justice Helen McQueen until 4 February 2025 to deliver a judgment rejecting Janet Dickson’s claim (Dickson v Real Estate Authority and others [2025] NZHC 50). The Justice’s reasons for judgment are unconvincing. In a fundamental aspect, it adopts a strained and, in my view, untenable interpretation of provisions of the Real Estate Agents Act 2008 (the Act) in finding that rules made by the Authority in 2018 were valid.

I think the Act required the rules to specify at least in a general way if not specifically that real estate professionals would be compelled to undertake training in Māori cultural matters, the Treaty and allied matters. They did not do so. They gave no indication of the education the Authority would make compulsory. They simply said there would be up to 10 hours “Verifiable CPD” which was defined and means 10 hours of continuing professional development 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.

Under the Act, proposed rules cannot be made by the Authority unless approved by the Minister and consulted on with members of the real estate industry and others whom the Minister may direct. There cannot be meaningful consideration by the Minister or meaningful consultation with others if the proposed

rules are not reasonably specific about the education the Authority wishes industry participants to undertake. Plainly these approval and consultation provisions are a safeguard against the making of inappropriate rules. Yet, in one of the more bizarre aspects of the judgment, the Court used the mandatory approval and consultation provisions as reasons why the rules did not need to be specific about the content of the required education. It would put the Minister and the Authority to too much trouble if the educational content had to be approved and consulted on, the Court thought.

I don’t want to make this any more of a legal exegesis than it already is, so I’ll say no more about the decision itself, but I want to draw attention to something I found when searching to find who was the Minister currently responsible for the Act.

One of the parties to the decision was the “Associate Minister.” When the rules were made in 2018, the Associate Minister who approved them was a Minister of the Labour government. I found that by the time the proceeding was issued the Associate Minister of Justice responsible for the Act was Nicole McKee, so it was she who was the repository of the office and the third respondent in the proceeding.

This is truly ironic, for Minister McKee was not a supporter of what the Authority had done. Not long after becoming the responsible minister, in February 2024, she used her power under the Crown Entities Act 2004 to tell the Authority that she did not consider the mandatory CPD topic in 2023 – Te Kākano (The Seed) – met her expectation of being relevant to the real estate profession. My search for the identity of the current responsible Minister produced not only McKee’s name, but also this:

4 February 2025

McKee refocuses training for real estate agents

• Hon Nicole McKee

Justice

Associate Justice Minister Nicole McKee has acknowledged today’s High Court decision which saw Janet Dickson’s claims in her case against the Real Estate Agents Authority dismissed.

“As a matter of principle, Mrs Dickson chose not to complete the compulsory professional development topic Te Kākano (The Seed) – which introduced real estate professionals to Māori culture, language, customs, and the Treaty of Waitangi. Under the Real Estate Agents Act 2008 the REA is required to cancel a real estate agent’s licence if they do not complete their CPD requirements. Mrs Dickson applied for an exemption from completing Te Kākano and that application was denied. She therefore faced the prospect of not being able to practise as a real estate agent for five years.

“I sent a Letter of Expectation to the Real Estate Authority Board in February last year clearly outlining that CPD requirements should be relevant to the job of real estate agents.

“I advised the Board that I did not consider the mandatory CPD topic in 2023 – Te Kākano (The Seed) – to meet my expectation of being relevant to the real estate profession.

“It is critically important to me that the Real Estate Authority can demonstrate that its services materially improve outcomes for all New Zealanders and that they represent value for money.

“This case has shed light on an overly harsh punishment for real estate agents who have not completed the CPD requirements,” Mrs McKee says.

“No other profession imposes a five-year disqualification period on individuals for failing to complete their CPD requirement. It is a disproportionate response that stops people from working in their chosen profession.

“The Regulatory Systems (Occupational Regulation) Amendment Bill which I introduced to Parliament in December last year addresses this by removing that clause from the Real Estate Agents Act 2008, creating consistency with other regulated professions.”