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Real Estate Agents Bill (Consistent) (Section 19(1), 25(c)) [2007] NZBORARp 59 (30 November 2007)

Last Updated: 5 January 2019

Real Estate Agents Bill

30 November 2007 Attorney-General

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

Real Estate Agents Bill (PCO 8334/10) Our Ref: ATT395/49

1. I have reviewed this Bill ("the Bill") for consistency with the New Zealand Bill of Rights Act ("BORA"). I conclude that:
   

1.1 While questions arise as to:

1.1.1 The consistency of the minimum age (of 18 years) for certain licence-holders under cl 34 of the Bill with the right of non-discrimination on the grounds of age under s 19(1) BORA;

1.1.2 The consistency of the restriction against holding oneself out as an agent (cl 6(2)) and the requirement to provide the "approved guide" (cll 125 and 131) with the right of freedom of expression under s 14 BORA; and

1.1.3 The consistency of the offence of failure to notify change in circumstances "without reasonable excuse" (cl 150) with the presumption of innocence under s 25(c) BORA;

none of these gives rise to an inconsistency with BORA.

1.2 Further, while the Bill provides for discretionary powers that may engage BORA rights, notably in relation to the taking possession and inspection of agents’ records (cll 29-30), requirements to produce information (cl 82) and to restrict public access to or publication of disciplinary proceedings (cll 104(3) & 105), these powers are subject under s 6 BORA to interpretation consistent with those rights. As there is no provision that prevents interpretation of these powers consistently with BORA rights, no issue arises.

2. I have addressed the first three points more fully below.
   

Minimum age for licence-holders

3. Clause 34 provides that a person may only be licensed as a real estate agent, branch manager or salesperson if he or she is 18 or older. Further, a body corporate or company may be licensed as an agent only if one or more directors is 18 or older.
   
4. Such differential and, to the extent that people under 18 may wish to be licensed, potentially disadvantageous treatment on the basis of age may engage the right against

discrimination under s 19(1) BORA and s 22(1)(i) of the Human Rights Act 1993. It is currently unclear whether discrimination in terms of s 19(1) requires not only disadvantageous differential treatment but also, as for example in Canadian caselaw, that the differentiation must be invidious. It follows that the question of whether some differential treatment may be assessed as not engaging s 19(1) at all or, alternatively, as engaging that provision but then open to justification under s 5, also remains unsettled.[1]

5. For the purposes of analysis here, the differential and potentially disadvantageous differentiation on the basis of age under cl 34 is assumed to engage s 19(1). It therefore falls to be justified under s 5 BORA.
   
6. In considering whether the minimum age under cl 34 is justifiable in terms of s 5 BORA, it is necessary to consider whether the limit serves an important objective and whether the limit is rationally connected and proportionate to that objective.[2]
   
7. I note further, however, that distinctions based upon age have been accorded greater latitude than for example, distinctions based on race or religious belief, in part because of the different character of age as a personal characteristic and also because of the widespread use of age as a social policy criterion.[3]
   
8. Applying s 5 in that context, the minimum age under cl 34 can be seen to serve two objectives:
   

8.1 In the particular context of representation of others in commercial transactions involving real estate, the minimum age effectively serves as a proxy for personal responsibility, reflecting the significant obligations and need for personal independence of a licensed person under cl 34.

8.2 More widely, the inclusion of a minimum age under cl 34 coordinates the licensing scheme under the Bill with other related provisions that deal with legal capacity or responsibility, notably those governing the enforceability of contracts under the Minors’ Contracts Act 1969 and the ability to be appointed as a director under the Companies Act 1993.

9. It also follows that the minimum age is rationally connected to these objectives.
   
10. On the question of proportionality, however, it is necessary to consider whether it would be possible to achieve these objectives in a more flexible manner, for example by permitting people under 18 to obtain an exception to the minimum age by demonstrating, for example, an appropriate level of personal maturity. Such an approach does not appear appropriate here for at least two reasons:
    

10.1 To the extent that the minimum age under cl 34 reflects personal characteristics, such as maturity, those characteristics are necessarily both vague and subjective. While some statutory minimum ages provide for individualised assessment, such as the power of the

District Court under s 9 of the Minors’ Contracts Act to approve a young person’s entry into a particular contract, the very general assessment that would be required here does not appear feasible.

10.2 Further, and as was noted, the minimum age under cl 34 is in part reflective of a broad scheme that governs legal capacity. The use of a common minimum age across that scheme promotes not only consistency and clarity but also allows young people and others to be certain of their rights and responsibilities in dealing with one another. Provision of an exception would be inconsistent with these purposes.

11. More widely, the effect of the minimum age does not appear disproportionate, as the practical effect of cl 34 is essentially only to delay licensed practice for a short period.
    
12. For that reason, I conclude that if the minimum age under cl 34 engages s 19(1) BORA, it is nonetheless justifiable under s 5.
    

Restrictions on expression

13. Further, cll 6(2) and 131 may be seen to engage the right of freedom of expression under s 14:
    

13.1 Clause 6(2) prohibits unauthorised people from holding themselves out as able to carry out real estate agency work. As such, it imposes a specific, and very limited, restriction on expression. Given, however, the limited character of the restriction and the clear necessity to avoid misleading representations in respect of a licensed activity, the restriction is justifiable under s 5.

13.2 Clause 131 requires real estate agents to provide clients with an "approved guide". While some requirements to provide information – for example, in the context of mandatory health labelling[4] – have been held to affect free expression, the requirement under cl 131 appears so limited in effect as either not to engage the right at all or, if engaged, to be very readily justifiable.

14. It follows that no issue arises on this basis either.
    

Offence "without reasonable excuse"

15. Last, cl 150 provides that it is an offence for a licensed person to fail to notify a change in circumstances under cl 66 "without reasonable excuse". The effect is to place a legal onus on the defendant to prove the excuse on the balance of probabilities.[5]
    
16. Commentators have suggested that such provision engages the right to presumption of innocence under s 25(c) BORA.[6] There is, however, High Court authority that an onus in relation to an express defence does not engage s 25(c).[7] Further, and in any event, the provision appears justified under s 5 BORA as it relates to compliance by participants in a regulated activity with reasonable regulatory requirements.[8]
    
17. I note that I have been assisted in preparing this advice by Monica Silverwood, Assistant Crown Counsel, and that this advice has been peer reviewed by Christina Inglis, Crown Counsel.
    

Yours sincerely

Ben Keith Crown Counsel

Footnotes

1 See P Rishworth, G Huscroft, S Optican & R Mahoney The New Zealand Bill of Rights (OUP, 2003) 380-386, and A Butler & P Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, 2005) 500-501.

2 See, most recently, R v Hansen [2007] NZSC 7 at [70], [123], [203]-[204] and [271]. 3 See, more fully, S Fredman "The Age of Equality" in Fredman & S Spencer Age as an

Equality Issue (Hart, 2003) 21, 37ff, and also, for example, Gosselin v Quebec [2002] 4 SCR

429 (Supreme Court of Canada).

4 See, for example, Canada (Attorney General) v JTI-Macdonald Corp, 2007 SCC 30, [130]ff. 5 See s 67(8) of the Summary Proceedings Act 1956.

6. A Butler & P Butler The New Zealand Bill of Rights Act: A Commentary (2005) 831.
   
7. Francis v Police (High Court, Auckland Registry, AP 154/02, 1 May 2003, Heath J) (s 25(c) not engaged as onus is as to an available defence, not to disproving an element of the offence itself).
   
8. Where an individual voluntarily undertakes a position of responsibility in relation to a regulated activity, such provisions are considered justifiable. See, for example, R v Johnstone [2003] UKHL 28; [2003] HRLR 25.
   

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Real Estate Agents Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.