Real estate agent objects to police vetting

The agent lost his licence after refusing to sign the Real Estate Agents Authority's form. Photo / File

A real estate agent who objected to a police vetting check when renewing his licence is seeking a legal ruling saying the industry authority's requirement is too invasive.

Wellington agent Luke Domb would not sign the Real Estate Agents Authority form that included consent to such vetting.

He didn't mind the standard check to see if he had any convictions but was opposed to the authority going further when it assessed a prospective agent's fitness for the industry.

Because of his refusal to sign the consent form Mr Domb lost his licence, although he won it back after an appeal to an industry tribunal.

A tribunal decision said Mr Domb had no convictions and there was no evidence to suggest he would not pass the police vetting, although he was involved in a high-profile spat about invalid car registration notices.

His lawyer Alwyn O'Connor told the High Court at Wellington today the vetting issue still needed sorting.

He said vetting included information about active charges, warrants of arrest, information received or obtained by police and even interactions with police and intelligence they hold.

Mr Domb is applying to the court for a ruling that people seeking a real estate agents' licence aren't subject to such rigorous scrutiny, which Mr O'Connor said the industry legislation did not intend.

He questioned why the authority would need to see information about charges dismissed or where there was an acquittal or discharge without conviction, saying forcing prospective agents to agree to release that was akin to unlawful search and seizure.

"Criminal history is exactly that, a history of criminal convictions or criminal offending.

"You cannot have a criminal history without proven criminal history. If I was wrong about that it would displace the presumption of innocence - the cornerstone of our legal system," Mr O'Connor said.

"Police vetting is more invasive than criminal history and they are conceptually different things."

Mr O'Connor said vetting was appropriate for roles involving contact with vulnerable people, such as early childhood teachers.

The authority's lawyer Michael Hodge said the law allowed it to require police vetting and it did so on behalf of consumers.

"It's about access to information on behalf of consumers, who have no access to that information themselves."

Mr Hodge said whether a prospective agent was facing any criminal charges was relevant to assessing their fitness for the industry and Mr O'Connor and Mr Domb were effectively saying all that mattered was a history of convictions.

It was relevant if an agent was facing a serious prosecution, especially fraud, Mr Hodge said.

Mr O'Connor said he wasn't arguing against that.

The authority had changed its form ahead of today's hearing, the outcome of which would determine its future stance.

Justice David Collins reserved his decision.