Domb v Real Estate Agents Authority
[2015] NZHC 3157
•10 December 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-000160 [2015] NZHC 3157
IN THE MATTER OF an Application pursuant to section 3 of the
Declaratory Judgments Act 1908
BETWEEN
LUKE DOMB Plaintiff
AND
REAL ESTATE AGENTS AUTHORITY Defendant
Hearing: 2 December 2015 Counsel:
A O'Connor and C G O'Connor for Plaintiff
M J Hodge for Defendant
No appearance for Real Estate Institute of New ZealandJudgment:
10 December 2015
JUDGMENT OF COLLINS J
Summary of judgment
[1] This judgment explains why I have exercised the jurisdiction to issue a declaration under the Declaratory Judgments Act 1908 concerning one aspect of the powers of the Registrar of the Real Estate Agents Authority (the Registrar). The declaration explains in broad terms the scope of the powers of the Registrar to require an applicant for a licence under the Real Estate Agents Act 2008 (the Act) to authorise the Registrar to obtain information about the applicant from the New Zealand Police (the police) in order to reach a decision about whether the person is a “fit and proper” person to hold a licence under the Act.
[2] I have concluded the Registrar can require an applicant to authorise the police to disclose to the Registrar information about an applicant’s “criminal history”.
DOMB v REAL ESTATE AGENTS AUTHORITY [2015] NZHC 3157 [10 December 2015]
[3] The term “criminal history” means in the context of this case three categories
of information about an applicant, namely:
(1) A record of an applicant’s convictions and any sentences, penalties or
orders imposed as a result of conviction.
(2)Information the police have about charges pending against an applicant that are relevant to the Registrar’s assessment of whether the applicant is a fit and proper person to hold a licence under the Act.
(3)A record of any discharges without conviction that are relevant to the Registrar’s assessment of whether the applicant is a fit and proper person to hold a licence under the Act.
[4] I am seeking further submissions on how I should define what charges covered by subparas 3(2) and (3) are relevant to the Registrar’s assessment of whether an applicant is a fit and proper person.
The issue
[5] The Act provides for the licensing of agents, branch managers and salespersons. This case concerns the licensing of an agent but the principles set out in this judgment also apply to other categories of licenses under the Act.
[6] An agent applies to be registered under the Act and also applies each year to have his or her licence renewed.
[7] The forms to be used by an applicant for a licence and by a licensee who applies to renew his or her licence are prescribed in Schedule 2 of the Real Estate Agents (Licensing) Regulations 2009 (the Regulations).1
[8] The Real Estate Agents Authority (the Authority) has modified the form that it requires a licensee to complete when applying to renew his or her licence (renewal
of licence form). In its renewal of licence form, the Authority asks:
1 Real Estate Agents (Licensing) Regulations 2009, Schedule 2, Forms 1 and 7.
Since you were last issued a licence or renewed your licence:
…
(d) Do you have any current or pending charges in New Zealand or overseas?
If yes, attach details of the charges to this application.
No issue is taken with the Authority seeking an answer to this question. Mr Domb accepts the answer to that question may be relevant when determining if an agent continues to be a fit and proper person to qualify to be re-licensed under the Act.
[9] Currently, the renewal of licence form contains a page headed “Consent to Disclosure to the Real Estate Agents Authority (for a New Zealand Police Vet Check)”. That request, which I will refer to as the police vetting document, is currently page 4 of the renewal of licence form.
[10] Clause 1 of the police vetting document asks the individual about whom a request for information is made to acknowledge that he or she understands the police will disclose:
The information about [the applicant] that NZ Police may consider relevant to [the] application and release in vetting comprises any conviction history and, for certain agencies, infringement/demerit reports; and it may include other information such as active charges and warrants to arrest, any information received or obtained by NZ Police, and any interaction [the applicant has] had with NZ Police in any context (including family violence), even where [the applicant has] not been charged, or charges are withdrawn, or [the applicant has] been acquitted (not guilty) of a charge, or [the applicant has] been discharged without conviction.
[11] It is this clause that causes concern to Mr Domb and other agents. He has sought a declaration about the validity of the Registrar requiring an agent to consent to a police vetting in the terms set out in cl 1 of the police vetting document.
[12] Mr Domb does not challenge the validity of the renewal form prescribed in the Regulations. His case is the Registrar is acting ultra vires when she asks an applicant to authorise her to obtain a police vetting of the applicant in the terms set out in the police vetting document.
[13] The form of declaration Mr Domb sought in his statement of claim was not the same as the declaration described in the submissions of his counsel, Mr O’Connor. To compound matters, the Authority suggested in its submissions that I focus on a different issue. I therefore invited counsel to confer and agree what question they wished me to consider. They advised the issue in this case was whether:
In making a determination on an application for a real estate agent’s licence (or renewal thereof), is the Registrar of the Real Estate Agents Authority (the Authority) entitled to require the applicant to sign a consent to disclose information held by the police about the applicant in the terms set out in the form issued by the Authority dated December 2014, and page 4 in particular?
Legislative regime
[14] The purposes of the Act include the promotion and protection of “the interests of consumers in respect of transactions that relate to real estate” and the protection of “public confidence in the performance of real estate agency work”.2
Parliament has explained the Act achieves its purposes by regulating licensees3 and
“raising industry standards”.4 The Act focuses upon the protection of consumers of services provided by licensees and the enhancement of the services they provide to the public. The Act can be accurately described as consumer protection legislation.
[15] The Act establishes the Authority. The functions of the Authority include administering the licensing regime for licensees.5 The functions of the Registrar are set out in s 34 of the Act. Those functions include responsibility for making “decisions about whether persons meet the requirements for licensing or continued licensing” under the Act.6
[16] An applicant is entitled to be licensed as an agent or a branch manager if he or she satisfies the Registrar of a number of criteria, including that the applicant “is a
fit and proper person to hold a licence”.7
2 Real Estate Agents Act 2008, s 3(1).
3 Section 3(2)(a).
4 Section 3(2)b).
5 Section 12(1)(a).
6 Section 34(b).
[17] Under s 37 of the Act, a person is prohibited from being licensed if, amongst other matters, they have been convicted in New Zealand or another country of an offence involving dishonesty within 10 years preceding the application for a licence, or if they have been convicted of an offence under specified provisions of the Fair Trading Act 1986 within the five year period preceding the making of an
application.8
[18] An application for renewal of a licence must be made before the date on which the licence expires.9 The application must be made to the Registrar in the prescribed form.10 The Act makes it clear that a licence cannot be renewed if the applicant is no longer a fit and proper person to hold a licence.11
[19] The renewal of licence form set out in Schedule 2 of the Regulations contains the following paragraphs:
Consent and certification
I consent to the making of inquiries to, and the exchange of information with, the authorities in New Zealand or in any participating jurisdiction regarding matters relevant to this application …
…
Notes
1A copy of this application, together with the prescribed statutory declaration, the prescribed fee, and any supporting documents (including sufficient authorisation to release information concerning the applicant’s criminal history and any proof of qualifications that is required by the Registrar) must be sent to the Registrar …
…
(emphasis added)
Facts
[20] Mr Domb is a licensed agent. In 2013 he applied to renew his annual agent’s licence. Mr Domb took exception to the wording of the police vetting document.
He decided to take action against what he considered to be “an abuse of power by the
8 Real Estate Agents Act 2008, s 37(1)(a) and (b).
9 Section 52(1).
10 Section 52(1)(a).
[Authority]”.12 Mr Domb decided not to authorise the Authority to ask the police to prepare a police vetting report about him.
[21] The Registrar formed the view she was unable to decide if Mr Domb was a fit and proper person to hold an agent’s licence if she could not obtain a police vetting report about Mr Domb. Mr Domb’s application to renew his agent’s licence was therefore declined.
[22] Mr Domb applied to the Real Estate Agents’ Disciplinary Tribunal (the Tribunal) to review the Registrar’s decision. That application was made pursuant to s 102(d) of the Act. In the meantime, Mr Domb signed the police vetting document on a “without prejudice” basis. After the Registrar obtained a vetted report from the police she decided to renew Mr Domb’s agent’s licence. The Tribunal nevertheless proceeded to hear and determine Mr Domb’s application to review the Registrar’s decision.
[23] In its decision the Tribunal said:13
… [T]he relevant information or evidence to apply the fit and proper person test (s 36 of the Act) will go well beyond ascertaining whether an applicant has a criminal history … We think that the phrase “criminal history” certainly includes not only any criminal conviction information, but also information about any conviction and discharge, or discharge without conviction. The latter two situations involve guilt to some extent. Otherwise, we do not think that “further interaction” with the police is covered by the expression “criminal history” ...
In our view, it is not for the Registrar to expand the scope of the statutory Form 7 or to insist that an altered version be signed by the applicant. The Registrar may ask an applicant to sign another form creating greater scope for her to obtain information from the Police or anyone else about the applicant, but the applicant need not agree to such a course. If such a refusal by an applicant leads to the Registrar deciding to decline the applicant’s registration or re-registration then her requirement can be reviewed in terms of natural justice.
[24] The Authority responded to the Tribunal’s decision by adding a provision to the police vetting document in March 2015. That addition reads:
12 Affidavit of L Domb, 28 September 2015 at [19].
13 Domb v Real Estate Agents Authority [2014] NZREADT 5 at [50] and [52].
Pursuant to regulation 6 of the Real Estate Agents (Licensing) Regulations
2009 you are required to complete pages 1 to 3 of the application. Page 4 is an additional disclosure document that the Registrar of the Real Estate
Agents Authority requires you to complete as part of an assessment of fitness
and proprietary to hold a licence. You can choose not to complete page 4, however, this will be taken into account by the Registrar in determining any application.
[25] Both parties have come to Court seeking a declaration which involves consideration of the validity of the police vetting document as it was prior to the March 2015 addition, which I have set out in paragraph [24]. When I questioned the parties why I was being asked to focus on the 2014 version of the police vetting document, I was advised the Authority’s preference was to use the 2014 version of that document and for this reason Mr Domb agreed to the terms of the question I have been asked to answer and which I have set out in paragraph [13].
[26] The Real Estate Institute of New Zealand (the Institute) represents the interests of real estate licensees in New Zealand. Approximately 96 per cent of real estate licensees are members of the Institute. The Institute fully supports the stance taken by Mr Domb. It is concerned the Authority is acting unlawfully by asking applicants to authorise the police to disclose information about applicants which goes beyond the scope and purposes of the Act and Regulations.
Analysis
Declaratory judgment jurisdiction
[27] At the commencement of the hearing I explained my concerns about the appropriateness of the application for a declaration. My concerns were based upon three points.
[28] First, Mr Domb had been granted a renewal of his agent’s licence. His application for a declaration was therefore currently moot.
[29] Second, if Mr Domb encounters difficulties in the future in obtaining re- registration, his remedy is to apply to the Tribunal for a review of the Registrar’s decision. If that fails, he could pursue his right of appeal to the High Court under s 116 of the Act. I was concerned Mr Domb was pursuing an application for a
declaration in circumstances where more appropriate procedures and remedies were available if required.
[30] Third, as I have explained in paragraph [25] I was concerned the parties were asking different questions. The prayer for relief in the statement of claim sought a form of declaration that was different from those referred to in paragraphs [1] and [2] of the written submissions filed by Mr O’Connor on behalf of Mr Domb. The forms of declaration sought by Mr Domb were also different from one which the Authority asked me to consider issuing. My concern about the precise nature of the question I was being asked to answer was resolved by counsel agreeing to the terms of the question I have set out in paragraph [13] of this judgment.
[31] Mr O’Connor urged me to consider Mr Domb’s application. Mr Hodge, counsel for the Authority, appreciated my obvious concerns about the appropriateness of the application, but nevertheless advised the Authority was content to have the issues raised by Mr Domb’s proceeding addressed by issuing a declaration.
[32] The Supreme Court has explained that it is no longer necessary for there to be a “genuine dispute or lis” between the parties in order for the High Court to consider issuing a declaration under the Declaratory Judgments Act 1908.14 The Supreme Court’s explanation of the scope of the declaratory judgment jurisdiction arose in the context of the Court of Appeal having said there were limits to the jurisdiction set out in the Declaratory Judgments Act. In its judgment the Supreme Court said:15
... The Court of Appeal considered that an applicant for declaratory judgment would normally have to “establish the existence of a genuine dispute or a lis” and overcome the “threshold” of being able to point to “an actual controversy between the parties which cannot be more appropriately determined in another forum, such as by arbitration”.
…
The jurisdiction under the Declaratory Judgments Act enables anyone whose conduct or rights depend on the effect or meaning of an instrument, including an agreement, to obtain an authoritative ruling. … Access to the
14 Mandic v Cornwall Park Trust Board (Inc) [2011] NZSC 135, [2012] 2 NZLR 194.
15 At [5] and [9].
jurisdiction does not depend on there being an existing dispute. Nor is it
necessary that there be a lis …
[33] Notwithstanding my reservations I have decided to address the question posed by the parties because of the importance of the issues raised by Mr Domb’s application to himself, other agents and the Authority.
[34] In addressing the question posed by the parties I have briefly examined the concept of an individual controlling information held about him or her by the state, and then focused upon two sub-issues namely, the meaning of the words “criminal history” set out in the prescribed form in the Regulations and secondly, the scope of cl 1 in the police vetting document.
Controlling information held by the state about an individual
[35] The plea that an individual should be able to preserve a realm of private life in which he or she assert total control over the release of information held about him or her by the state reflects an ideal that is not mirrored in either the common law or legislation. The “right to privacy” is enshrined in art 8 of the European Convention on Human Rights. It is not, however, a right that is incorporated into the New Zealand Bill of Rights Act 1990. While the common law recognises a limited
form of right to privacy, primarily found in breach of confidence cases,16 it has
primarily been left to Parliament to regulate the way in which information about an individual is received, stored and released by the state and others.
[36] The purposes of the Privacy Act 1993 (the Privacy Act) include promoting and protecting individual privacy.17 The Privacy Act sets out 12 basic privacy principles concerning the collection, storage and release of privacy information.18
Principle 10 explains limits on the use of personal information. The relevant
portions of that principle state:
16 Campbell v MGN Ltd [2004] 2 AC 457 (HL).
17 Privacy Act 1993, Long Title.
18 Section 6.
Limits on use of personal information
An agency that holds personal information that was obtained in connection with one purpose shall not use the information for any other purpose unless the agency believes, on reasonable grounds,—
(a) that the source of the information is a publicly available publication and that, in the circumstances of the case, it would not be unfair or unreasonable to use the information; or
(b) that the use of the information for that other purpose is authorised by the individual concerned; or
…
[37] Parliament has taken steps to place careful controls over the use of law enforcement information, at least since information of that kind has been stored in computer facilities. The Wanganui Computer Centre Act 1976 was the first legislative regime governing access to computerised law enforcement information held about access to computers storing law enforcement information held about individuals. That Act was repealed by the Privacy Act, which carefully prescribes access to law enforcement information. Under s 111 of the Privacy Act an agency associated with law enforcement may have access to law enforcement information held by another agency that holds that information. Law enforcement information includes court documents, details of hearings and records of convictions and
sentences.19
[38] The Privacy Act does not preclude an individual from authorising the release of information which an organisation, such as the police, hold about him or her. It is clear, however, the privacy principles articulated in the Privacy Act reflect Parliament’s intention that information about an individual’s criminal record should be carefully protected.
[39] Also relevant is the Criminal Records (Clean Slate) Act 2004 (the Clean Slate Act) which limits the effects of an individual’s conviction if he or she satisfies the eligibility criteria set out in the Clean Slate Act. Under the Clean Slate Act an eligible individual is deemed to have no criminal record for the purposes of any question asked about his or her criminal record and has the right to have his or her
criminal record concealed by government departments and law enforcement agencies that hold his or her criminal record.20
[40] “Criminal record” is defined in the Clean Slate Act to mean any–
(i) charges laid against him or her that have resulted in conviction; and
(ii) convictions entered against him or her; and
(iii) sentences imposed on him or her; and
(iv) orders imposed on him or her as a result of a conviction;
...
[41] “Eligibility” under the Clean Slate Act is set out in s 7 of that statute. The main criteria for eligibility are:
(1)that the individual has not been convicted of another offence for seven years;
(2) no custodial sentence has ever been imposed on the individual;
(3)the individual has not been convicted of specified offences as defined in s 4 of the Clean Slate Act; and
(4)the individual has paid any fine or reparation ordered at the time he or she was convicted.
[42] It is clear that those to whom the Clean Slate Act applies are entitled to the benefit of the legislative presumption I have explained in paragraph [39] of this judgment. There was no suggestion in this case the Registrar has attempted to circumvent the provisions of the Clean Slate Act.
“Criminal history”
[43] The Regulations provide that applicants for a licence or a renewal of a licence must provide the Registrar with supporting documents to enable the Registrar to determine if the applicant satisfies the criteria in the Act for a licence, or to have his or her licence renewed. Those criteria include the requirement that the applicant be a fit and proper person to be licensed. The documents identified in the Regulations include “sufficient authority to release information concerning the applicant’s criminal history”.
[44] Mr O’Connor submitted the words “criminal history” were confined to a record of an applicant’s criminal convictions. He summarised this aspect of his argument in the following way:21
…
there is no difference between criminal history and a criminal record –
indeed you cannot have one without the other
offending becomes criminal only when the presumption of innocence is displaced by a plea of guilt, or the finding of guilt by a judge or jury – only then is a record or history created by a court of criminal record
an acquittal does not displace the presumption of innocence an allegation does not displace the presumption of innocence
an interaction with Police in any context (whether charged or not, or where charges are later withdrawn), demerit points, a warrant to arrest, or any information received by Police do not displace the presumption of innocence
a discharge without conviction as a sentencing outcome does not create a criminal history of any kind.
Textual analysis
[45] In my assessment, in the context of this case, the concepts “criminal history” and “record of criminal convictions” are not synonymous. Had the Executive intended, when promulgating the Regulations to limit the scope of the information which the Registrar could seek about an applicant to a record of the applicant’s criminal convictions then it could easily have done so.
[46] The natural and ordinary meaning of the word “history” in the concept “criminal history” is broader than the natural and ordinary meaning of the word “record” when used in the term “criminal record”. “History” refers to “the total accumulation of past events”.22 A criminal record on the other hand is a record of a person’s convictions and sentences, orders or penalties imposed upon conviction. The definition of “criminal record” in s 2 of the Clean Slate Act accords with my understanding of what is meant by a criminal record.23
[47] When I apply a textual analysis to the meaning of “criminal history” in the context of this case, I conclude that it means more than a criminal record and encompasses other information the police have about an applicant. I explain later in this judgment that there are, however, important limits to what information the Registrar can ask an applicant to authorise the police to disclose concerning his or her criminal history.
Purposive analysis
[48] My conclusion about the textual meaning of the word “criminal history” is reinforced by the broader purpose for which information about an applicant is sought by the Registrar. In particular, information is sought by the Registrar about a person’s criminal history when inquiring into whether the applicant is a fit and proper person to obtain a licence or have his or her licence renewed within the context of protecting the interests of consumers and advancing the standards of licensees.
[49] When I apply a purposive approach to the meaning of “criminal history” in the context of this case, I am satisfied the information which the Registrar can seek when asking about an applicant’s criminal history is not confined to an applicant’s
criminal record.
22 Della Thompson The Concise Oxford Dictionary of Current English (9th ed, Clarendon Press, Oxford, 1995).
23 See also Care of Children Act 2004, s 23(6) where “criminal record” is defined to mean: “Criminal record means a document giving all details recording in law enforcement information held by or on behalf of the Ministry of Justice of every criminal conviction (if any) of the proposed additional guardian (whether a conviction in New Zealand or overseas)”.
Limits to what information can be sought
[50] I will now explain why, in my assessment, the information that can be sought
as part of an applicant’s criminal history encompasses:
(1)information that the police have about charges pending against the applicant that are relevant to the Registrar’s assessment of whether the applicant is a fit and proper person to hold a licence under the Act; and
(2)a record of any discharges without conviction that are relevant to the Registrar’s assessment of whether the applicant is a fit and proper person to hold a licence under the Act.
I will explain in paragraphs [61] to [65] why the other categories of information referred to in cl 1 of the police vetting document are either not part of an applicant’s criminal history or are not relevant to the Registrar’s assessment.
Undetermined charges
[51] Mr O’Connor agreed the Registrar would be entitled to know if an applicant was facing certain types of criminal charges when deciding whether the applicant was a fit and proper person to hold a licence under the Act. For this reason, no issue was taken with the Authority asking those seeking to renew their licences if they were the subject of any charges since last renewing their licence.
[52] If no issue is taken with an applicant being required to tell the Registrar if he or she has been charged with a criminal offence since his or her licence was last renewed, then it is difficult to see why exception could be taken to the police being authorised by an applicant to provide the same information.
[53] There is, however, a limit to what information should be disclosed by the police about an applicant concerning any charges he or she is facing. That limit is prescribed by reference to what charges could be relevant to the Registrar’s assessment of whether or not an applicant is a fit and proper person to hold a licence
under the Act, bearing in mind that a charge is, by its very nature, no more than an unproven allegation.
[54] It is easy to conceive of charges that might be relevant to the Registrar’s assessment of an applicant’s fitness and propriety. For example, it might be important for the Registrar to know if the applicant is facing fraud or other dishonesty charges that could put clients of the agent at financial risk. Mr O’Connor agreed information of this kind might be relevant to the Registrar’s decision to issue or renew a licence. On the other hand, the fact an applicant is facing a charge under the Land Transport Act 1998 is not relevant to the Registrar’s assessment of an applicant’s fitness and propriety to hold a licence under the Act.
[55] I will explain in paragraph [60] the process I intend to follow to determine
what charges could be relevant to the Registrar’s assessment.
Discharges without conviction
[56] I agree with the Tribunal when it said that an assessment as to whether or not an applicant passes the fit and proper person test will involve an assessment of information that goes beyond whether or not the applicant has criminal convictions and may include information that an applicant has been discharged without conviction pursuant to s 106 of the Sentencing Act 2002.
[57] The Tribunal reasoned information about whether or not a person has been discharged without conviction may be pertinent to an assessment as to whether or not the applicant is a fit and proper person to hold a licence under the Act. A person can only obtain a discharge without conviction after he or she pleads guilty to a charge. That acknowledgement of guilt means the police or other prosecuting authority has established the applicant has committed a criminal offence. A court’s assessment when deciding to grant a discharge without conviction under s 106 of the Sentencing Act involves a determination that a conviction would be out of proportion to the gravity of the offence.
[58] A court’s decision that an applicant should have the benefit of a discharge without conviction does not necessarily mean the applicant is a fit and proper person
to hold a licence under the Act. When granting an applicant the benefit of a discharge without conviction the Court should not be determining whether or not the applicant is a fit and proper person to have a licence under the Act. That is the function of the Registrar, whose decision may involve considerations that do not mirror the reasons for granting a discharge without conviction. I acknowledge, however, that usually the Registrar will not draw conclusions adverse to an applicant who has been discharged without conviction.
[59] The challenge is to try and determine what types of unproven charges may be relevant to determining if an applicant is a fit and proper person to hold a licence under the Act.
[60] I am inviting submissions from counsel on how I should define what pending charges, and what charges that have resulted in a discharge without conviction are relevant to the Registrar’s assessment of whether or not an applicant is a fit and proper person to hold a licence under the Act. The possible formula include stipulating specific offences or identifying offences by reference to the maximum penalty that may be imposed. Counsel may be able to construct other formula.
Clause 1 of the police vetting document
[61] The police vetting document has been prepared by New Zealand Police for all organisations which seek information about individuals that is held by the police. The police vetting document is therefore cast in very broad terms.
[62] I have three concerns about cl 1 of the police vetting document.
[63] First, the clause refers to information that the police may consider relevant to an individual’s application to an organisation such as the Authority. It is, however, not the role of the police to determine what is and what is not relevant to the Registrar’s assessment of whether or not an applicant is a fit and proper person to hold a licence under the Act. That is the duty of the Registrar. The police should not usurp her authority.
[64] Second, some of the information that could be released by the police pursuant to cl 1 of the police vetting document is beyond the scope of an applicant’s criminal history. In particular, I do not see how information about “… any information received or obtained by NZ Police, and any [information about] any interaction [the applicant has] had with NZ Police in any context …” could form part of an applicant’s criminal history.
[65] Third, cl 1 of the police vetting document covers a wide range of information which could never be relevant to the Registrar’s assessment of an applicant’s fitness and propriety to hold a licence under the Act. For example, I do not see how information about withdrawn charges or charges which result in an applicant being found not guilty should be relevant to the Registrar’s assessment. This is because a decision to withdraw a charge, or information about charges which result in an acquittal mean no adverse finding has been made against the applicant. Information concerning these types of outcome is distinguishable from information about a discharge without conviction which, as I have already explained, involves an admission of criminal wrongdoing by the applicant. Requiring an applicant to authorise disclosure of information about charges that have been withdrawn or which have resulted in an acquittal involves an unacceptable undermining of the presumption of innocence. Charges which have been withdrawn or which have resulted in an acquittal are not relevant to the Registrar’s assessment.
Relief
[66] I issue a declaration that the Registrar is not entitled to require an applicant for an agent’s licence (or renewal thereof) to sign a consent to disclose information held by police about the applicant in the terms set out in cl 1 of the police vetting document, which I have reproduced in paragraph [10] of this judgment.
[67] The Registrar is, however, entitled to request an applicant consent to the police disclosing information held by the police about an applicant concerning three categories of information.
[68] The information which the Registrar can require an applicant to authorise the police to disclose is confined to:
(1)A record of an applicant’s convictions and any sentences, penalties or orders imposed as a result of conviction.
(2)Information that the police have about charges pending against the applicant that are relevant to the Registrar’s assessment of whether the applicant is a fit and proper person to hold a licence under the Act.
(3)A record of any discharges without conviction that are relevant to the Registrar’s assessment of whether the applicant is a fit and proper person to hold a licence under the Act.
[69] I invite submissions from counsel on how I should frame the terms of the declaration to define what unresolved charges, and what charges which have resulted in a discharge without conviction are relevant to the Registrar’s assessment of whether an applicant is a fit and proper person to hold a licence under the Act. Those submissions should be filed by 5 February 2016.
[70] For completeness, I emphasise the Registrar must continue to comply with the Clean Slate Act.
[71] I reserve the question of costs until the final form of the declaration is determined.
D B Collins J
Solicitors:
Simpson & Co, Otaki for Plaintiff
Meredith Connell, Auckland for Defendant
3