This article was originally published by the Auckland District Law Society.
The Real Estate Agents Act 2008 (the Act) created the Real Estate Agents Authority (REAA) as a Crown entity for the purposes of s 7 of the Crown Entities Act 2004 (CEA) which applies to the REAA except to the extent that the REAA provides otherwise.
There is a variety of Crown entities. The REAA is a Crown agent (Part 1 of Schedule 1). The minister responsible for the Act appoints the REAA Board.
The REAA requires a licensed real estate professional to undergo continuing professional development (CPD), something lawyers are familiar with.
The REAA’s CPD requirements for 2023 include two mandatory topics. The first is the Code of Conduct. These are practice rules setting out the standard of conduct and client care that agents, branch managers and salespeople are required to meet when carrying out real estate agency work and dealing with clients, contained in the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012.
These rules, required by s 14 of the Act, are a non-exhaustive statement of the conduct expected of licensees. It seems not unreasonable that a licensee should be required to know about them as a condition of being licensed.
The second mandatory topic is different. Part of the diversity and inclusion series, it is Te Kkano (the Seed). The only approved training provider is Te Whare Wānanga o Awanuiārangi.
Nau mai haere mai ki Te Whare Wānanga o Awanuiārangi
Te Whare Wānanga o Awanuiārangi are proud to partner with the Real Estate Authority to co-develop and deliver the first topic in the Diversity and Inclusion Series….
Overview of Te Kākano
Te Kākano consists of three modules:
Course completion cost: $29 + GST
The Act prohibits a person from carrying out any real estate agency work unless the person is licensed under the Act or falls within one of the narrow exemptions (eg, is a lawyer or an auctioneer).
When a licensed real estate professional (an agent, branch manager or salesperson who holds a licence under the Act) wishes to renew the licence (which has a 12-month term), the licensee must satisfy the registrar that he or she has completed any continuing education required by practice rules made by the REAA (s 52).
Section 54 compels the registrar to cancel a person’s licence if the person has failed to complete any continuing education required by practice rules made by the REAA (under s 15 which permits the REAA to make practice rules requiring that particular continuing education be undertaken).
No choice
So, any licensed real estate professional who fails to complete Te Kākano (the Seed) with Te Whare Wananga o Awanuiarangi as the only approved provider must be refused licence renewal if a licence has not previously been cancelled for the failure.
As Māori customary land cannot be alienated at all, and Māori freehold land cannot be alienated otherwise than in accordance with Te Ture Whenua Māori Act 1993 Māori Land Act 1993 (ss 145 and 146), it is difficult to see how even Module 3 might be relevant to the professional life of a licensed real estate professional.
The point 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.
If a particular real estate professional had or wanted to seek business in the Māori land area (I should think it would be a tiny number, if any at all), he or she might find it advantageous to take such a course, but REAA makes them all do it.
There is a difference in kind between the Code of Conduct and the Te Kākano (the Seed) topics.
The first concerns the way professionals should conduct themselves in their dealings with and for members of the community engaged in selling and buying property and the like, as outlined in the “scope and objectives” part of the rules.
They concern professional competence, fiduciary obligations, confidentiality, and other objective requirements relevant to the way the job should be done.
The brief description of the second, Te Kākano (the Seed), does not contain even a hint that it relates to real estate professionals’ conduct. Rather it suggests a REAA desire that attendees learn about Māori language and culture, the treaty and Māori land. What’s wrong with that? you may well ask. Nothing at all, the answer is, except: “REAA, it is none of your business; mind your own, not the licensees’”.
What an adult human real estate professional decides to learn in matters unconnected with their professional conduct is for them, not REAA, to decide.
Regrettably, as John Stuart Mill wrote in 1859, in his famous essay On Liberty:
The disposition of mankind, whether as rulers or as fellow-citizens to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power….
Kindle Edition, p 19.
The Act gives the REAA power; the REAA says, we think you should do this; do it or you lose your licence.
The motivation cannot be to fulfil the purpose of the Act, of promoting and protecting the interests of consumers in respect of real estate transactions. Obviously, it has nothing to do with that. It is to promote an REAA agenda.
Tikanga
We can tease this out a bit further before turning to its implications for lawyers, by looking at tikanga, which is the subject of much discussion at present.
The statement scheduled to the Ellis continuance decision ([2022] NZSC 114), under the heading “The nature of tikanga,” contains this:
According to the learned writers of the statement, these are for the Māori of whom the writers are speaking, “their own opinions and inclinations”, to use Mill’s words. The Māori of whom the writers are speaking are entitled to follow these values, standards, principles or norms without interference except to prevent harm to others, but there ought to be no attempt to impose them on others.
To put this in ways which have been developed over centuries and are now embodied in international conventions and domestic legislation, “the right Māori way of doing things,” “what Māori consider is just and correct,” “the values, standards, principles or norms that the Māori community subscribe to,” are matters of thought, conscience, religion, and/or belief for those who subscribe to them.
Those within the community who subscribe to them, be they Māori or non-Māori, are absolutely entitled to do so without interference (Bill of Rights, s 13). By the same token, those who do not subscribe to them are equally entitled to go about their lives without being subjected to attempts to make them do so.
Relevance for lawyers
The NZLS’s independent review has recommended the establishment of a so-called independent regulator for the legal profession, “independent” yet having a board appointed by the Minister of Justice and required “to give effect” to the Treaty of Waitangi.
Te Kākano (the Seed) is a mandatory requirement for real estate people even though the treaty is not mentioned in either the Act or the CEA.
A regulator of lawyers required “to give effect” to the principles of the treaty would surely be required by legal obligation to demand from lawyers at least what is demanded of real estate professionals.
The reality is that because we are lawyers with far wider responsibilities, much more will be demanded, especially in relation to tikanga. And, what about Te reo Māori? Will those of us who do not speak it be compelled to learn?
Former US President, the late Ronald Reagan warned of the perils of government involvement. Some of we older ones may remember: “The nine most terrifying words in the English language are: ‘I’m from the government, and I’m here to help’.”
The way the government has “helped” licensed real estate professionals exemplifies the accuracy of Reagan’s words. It is a warning to lawyers inclined to support the recommendation for a government-appointed regulator.
Overreach
In 2008, the legislators may not have realised that the REAA they created would in 2023 use its powers the way it has. These so-called independent bodies the government creates enable surreptitious incursions on individual liberty immune from both democratic accountability and the parliamentary and public scrutiny attendant on legislative action.
I doubt many lawyers would have expected the NZLS the government created in the 2006 Lawyers and Conveyancers Act would in 2023 be contemplating getting government “help” to create a regulator like the REAA to take over the regulation and disciplining of the profession.
As a postscript, I note a fallacy contained in the Statement of Tikanga is the claim that tikanga is “first law”. The short point can be expressed in a sentence: tikanga is not “first law” because it is not “law,” as ought to be readily apparent from the paragraphs quoted earlier.
Nevertheless, as the Supreme Court has stated “[22] The majority judges accept that tikanga was the first law of Aotearoa/New Zealand,” the matter ought to be dealt with thoroughly.
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